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CounterPunch
September
9, 2002
Advertise This!
by Russell Mokhiber
and Robert Weissman
Corporations are gaining ground fast in their
effort to assume all of the U.S. constitutional protections afforded
human beings.
Some of the last limitations on corporate
free speech rights may be about to fall, thanks to Supreme Court
decisions that increasingly equate commercial advertising with
political speech, and a Food and Drug Administration (FDA) that
appears eager to accept Court-imposed restrictions on its authority.
To see what you can do to help block
this corporate empowerment, see: http://www.essentialaction.org/commercialspeech.
An 1886 Supreme Court decision established
that corporations in the United States are entitled to constitutional
protections. Since then, the Court has progressively extended
Bill of Rights protections, including First  Amendment speech rights, and
other constitutional guarantees to corporations. In 1978, the
Court established a constitutional right to "commercial
speech" -- speech intended to promote and advertise products
for sale, as opposed to political or expressive speech.
Since 1978, the courts have steadily
expanded commercial speech rights, taking a potentially dramatic
step in a decision issued earlier this year.
In that decision, Thompson v. Western
States Medical Center, the Supreme Court interpreted its commercial
speech test, developed in a case called Central Hudson, to make
it very difficult for the government to restrict commercial speech.
Western States Medical Center involved
a provision of a 1997 law that permits pharmacies to make compounded
pharmaceuticals -- drugs manufactured on the premises, to serve
the specific needs of particular patients. The 1997 law permits
compounded drugs to be sold -- even though they have not passed
FDA safety and efficacy tests -- but on condition that they not
be advertised. The basic idea is to seek a balance: to permit
manufacture for specifically prescribed needs, but to prevent
pharmacies from circumventing the FDA's safety rules by advertising
untested compounded drugs to the broad public.
The Supreme Court struck down this provision,
holding that it violated the commercial speech rights of the
pharmacies. In conducting the Central Hudson test, the Court
agreed that there is a substantial governmental interest in protecting
public health and preserving the integrity of the FDA drug approval
process, and conceded the advertising restrictions might directly
advance these ends. But it held that the law failed to satisfy
the final prong of the Central Hudson test, "whether it
is not more extensive than necessary to serve that interest."
Justice O'Connor, writing for the majority,
posited a series of alternatives to an ad ban, without citing
any evidence, or even providing compelling arguments, that these
alternatives would work as effectively as an ad ban. But they
were enough for the majority to conclude that the advertising
restrictions were more extensive than necessary.
This holding seems to move the Central
Hudson test away from ascertaining whether there is a reasonable
fit between the government's commercial speech regulations and
its legitimate goals, and towards a much higher level of scrutiny.
The Court is beginning to break down the constitutional distinction
between political and (nonmisleading) commercial speech -- even
though commercial speech protections essentially apply uniquely
to corporations, which do most commercial advertising.
The Supreme Court justifies this rising
level of protection for commercial speech on the grounds that
the government cannot legitimately deny the public truthful commercial
information to prevent the public from making bad decisions with
the information.
But why not?
If the Court is going to justify commercial
speech protections based on the public's right to know, as opposed
to the speaker's right to speak, it makes sense for the government
to make determinations about whether the commercial information
actually will educate the public to advance public policy goals.
It is hardly a revelation that advertising contains promotional
elements that may drown out its educational benefits.
The high level of protection afforded
to commercial speech by the courts poses a difficult challenge
for regulatory agencies that reasonably seek to restrict advertising,
including and especially the FDA, which has good public health
reasons to restrict advertising and promotional claims.
For example, drug companies now spend
billions of dollars a year on Direct-to-Consumer (DTC) prescription
drug advertising, with more spent to advertise leading drug brands
than Pepsi or Budweiser. These ads encourage consumers to demand,
and doctors to prescribe, pharmaceuticals that people don't need.
The ads fail to convey the comparative benefits of the marketed
drugs to alternatives. They don't reveal price information.
DTC ads should be prohibited. But as
long as the Supreme Court holds that there are constitutional
speech protections, they must be highly regulated. Now, the extent
of FDA's authority to regulate DTC ads is somewhat uncertain.
Or consider tobacco (not currently under
the jurisdiction of the FDA, or any federal health agency). There
is an abundance of studies conclusively showing that advertising
increases smoking rates, especially among youth. Tobacco ads
and promotions should be banned. Commercial speech protections
make this impossible. The Court's new formulation may also make
even more modest restrictions on tobacco promotion very difficult.
There is no question that the Court has
made things hard for the FDA, which must maneuver to give itself
the greatest possible latitude to restrict advertising to protect
public health.
Unfortunately, the FDA seems quite happy
to forfeit the powers it needs to do its job. In May, the agency
put out a request for comments (with a comment period open until
mid-September) on issues involving First Amendment protections
for commercial speech and the scope of the agency's authority.
It appears the agency is looking for excuses to throw up its
hands -- "Sure, we'd like to do our job, but there's not
much we can do. The Supreme Court says corporations have a constitutional
right to advertise, even if that will harm public health."
The outcome, however, is not a foregone
conclusion. Twenty-five years ago, there were no constitutional
protections for commercial speech. The tide can be turned back,
beginning with a public demand that the Food and Drug Administration
-- the leading U.S. public health regulatory agency -- assert
the supremacy of protecting the public health over a purported
constitutional right for corporations to hawk their wares.
Russell Mokhiber
is editor of the Washington, D.C.-based Corporate Crime Reporter.
Robert Weissman is editor of the Washington, D.C.-based
Multinational
Monitor, and co-director of Essential Action. They are
co-authors of Corporate
Predators: The Hunt for MegaProfits and the Attack on Democracy
(Monroe, Maine: Common Courage Press, 1999.)
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September
7 / 8, 2002
Bill Christison
A
Year Later: It's Happening Here
Alexander
Cockburn
The
Tenth Crusade
Susan Davis
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