Monday, October 13, 2014

Why public health agencies regulate commercial speech

Guest Blogger

Joshua M. Sharfstein

For the conference on Public Health in the Shadow of the First Amendment
On Saturday, October 18, I’m headed to New Haven to speak at the conference “Public Health in the Shadow of the First Amendment.”

In the meantime, as Secretary of Maryland’s Department of Health and Mental Hygiene, I have been fielding nonstop questions about the Ebola virus and the potential risk to Americans.

After the first case was identified in the United States last week, my Department, along with representatives from Johns Hopkins and the University of Maryland held a news conference to provide factual information on Ebola, its treatment, investigation of cases, and handling of outbreaks.  When asked about potential treatments and vaccines, I was able to say that FDA is accelerating consideration of important therapies, but that none had been approved to date.

I’m a pediatrician, not a lawyer.  I am, however, familiar with the increasingly popular view of some attorneys and judges who believe that the First Amendment’s protections for speech apply fully  to marketing by corporations -- that it is unconstitutional to restrict companies from saying truthful statements about their products, and that the burden of disproving such statements falls to the government.

Such a perspective would not serve Americans well this week.  Companies would be able to market worthless remedies for preventing and curing Ebola infection, backed by technically true but confusing statements about doctors and scientists who happen to agree.  When actual treatments that work become available, consumers would be forced to distinguish in a moment of panic between meaningful care and snake oil.

Public health agencies have long regulated commercial speech because doing so saves lives – both directly, by reducing unnecessary confusion, and indirectly, by supporting an incentive structure that rewards advancing health.  Regulation of commercial speech often represents the right balance between not doing anything (and the resulting health harm) and banning particular products (and eliminating choice altogether).  Public health action to regulate commercial speech has enjoyed broad popular support.

Now is not the time to trade this approach for an ideological vision of commercial speech under the First Amendment.  I look forward to the conference and the opportunity to engage with practitioners, academic experts, and others on this vital topic in public health and the law.

Joshua M. Sharfstein, M.D., is Secretary of Health & Mental Hygiene for the State of Maryland. You can reach him by e-mail at joshua.sharfstein at

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