Researcher: Regulations Banning Gifts Unlikely to Pass Constitutional Muster
Is a free donut an expression of free speech? At least one expert thinks so, and the strength of her argument could have a wide-ranging impact on the ability of states to regulate gifts from the pharmaceutical and medical device industry to physicians and academia.
Writing in the June 2012 issue of the Journal of Health and Biomedical Law, Marcia Boumil, JD, an associate professor at the Tufts University School of Medicine, argues recently-established judicial precedence may well constitutionally protect commercial speech exercised in the form of gifts.
"Despite the intent and value of [laws banning gifts from industry to physicians], courts might now find they violate the First Amendment because the states might not be able to prove that the laws serve a clear and compelling state interest," wrote Boumil, referencing the 2011 court case Sorrell vs. IMS Health, Inc.
In Sorrell, the Supreme Court of the United States ruled Vermont's legislation banning drug companies from purchasing prescriber-identified information for marketing purposes was unconstitutional under the first amendment, which protects free speech. Earlier cases have held commercial entities such as companies are eligible for many of the same constitutional rights and protections as are individual citizens.
The case's bright line, explained Boumil, seemed to be the restriction of speech of a single group-in this case, the pharmaceutical industry-while exempting other groups created a situation in which the restricted group's rights were violated. While compelling interests can override this concern, the court did not find Vermont's argument compelling, which could have a wide-ranging impact if states or the federal government is not able to make a compelling case for the necessity of banning industry gifts.
"The Supreme Court decision determined that the law also violated First Amendment protections because Vermont had not clearly established evidence of a legitimate state interest for regulating commercial speech, although Vermont asserted that the law protected medical privacy, reduced health care costs, and safeguarded public health," explained Boumil in a statement. "If this same degree of scrutiny were applied to state pharmaceutical gift laws, states may be required to prove that these laws serve a clear and compelling state interest using hard data-no easy task," concluded Boumil.
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