Interestingly, even the government tried to run for cover from the First Amendment, arguing on appeal that off-label promotion only "plays an evidentiary role" in a criminal prosecution for misbranding. Slip op. at 27 (emphasis original). Thus:
The majority in Caronia didn't buy the change of tactics. "[T]hat is not what happened in this case." Id. at 28.
The Court then quite explicitly rejects an off-label promotion ban as required by the FDCA, because to do so would be unconstitutional:
"Content-based" governmental restrictions on speech are "subject to strict scrutiny" and "presumptively invalid. Id. at 34. "Criminal regulatory schemes, moreover, warrant even more careful scrutiny." Id. The Second Circuit then followed Sorrell's two-step First Amendment analysis.
First, the FDA's regime banning off-label promotion is "content based" − that is, based upon what is being discussed and thus not neutral:
Caronia, slip op. at 40-41 (again citing Sorrell, with other citations omitted). Finally, Caronia was worse than Sorrell, from a First Amendment standpoint, because "this case involves a criminal regulatory scheme subject to more careful scrutiny. Id. at 41.
Caronia goes on to invalidate the FDA's off-label speech ban under the less strict Central Hudson commercial speech test. The first two prongs were easy: "promoting off-label drug use concerns lawful activity (off-label drug use), and the promotion of off-label drug use is not in and of itself false or misleading." Slip op. at 42 (there's a footnote that the dissent suggests that off-label promotion is inherently misleading, but even the government did not so argue).
The third prong is also satisfied, since the government has "substantial" interests “in preserving the effectiveness and integrity of the FDCA’s drug approval process, and . . . in reducing patient exposure to unsafe and ineffective drugs.” Id. at 42-43. Again, that's not something that this blog has ever disputed, either. It all comes down to whether the FDA's ban on truthful speech is a legitimate way, under the First Amendment, to pursue those interests.
- “As off-label drug use itself is not prohibited, it does not follow that prohibiting the truthful promotion of off-label drug usage by a particular class of speakers would directly further the government’s goals.” Caronia, slip op. at 44.
- “[P]rohibiting off-label promotion by a pharmaceutical manufacturer while simultaneously allowing off-label use ‘paternalistically’ interferes with the ability of physicians and patients to receive potentially relevant treatment information; such barriers to information about off-label use could inhibit, to the public’s detriment, informed and intelligent treatment decisions.” Id.
- “While some off-label information could certainly be misleading or unhelpful, this case does not involve false or misleading promotion. Moreover, in the fields of medicine and public health, ‘where information can save lives,’ it only furthers the public interest to ensure that decisions about the use of prescription drugs, including off-label usage, are intelligent and well-informed.” Id. at 46.
- “If the government’s objective is to shepherd physicians to prescribe drugs only on-label, criminalizing manufacturer promotion of off-label use while permitting others to promote such use to physicians is an indirect and questionably effective means to achieve that goal.” Id. at 47
- “[T]he government’s construction of the FDCA to impose a complete and criminal ban on off-label promotion by pharmaceutical manufacturers is more extensive than necessary to achieve the government’s substantial interests.” Id. at 48.
- The government has plenty of non-infringing alternatives: FDA warnings about off-label uses; disclaimers; safety tiers between various off-label uses (like Medicare does), listing known or suspected off-label uses in the approval process; and ceilings or caps on the number of off-label prescriptions before FDA approval is mandatory, and even prohibitions of some off-label uses. Id. at 48-50.
- “In the absence of any support, such conclusory assertions are insufficient to sustain the government's burden of demonstrating that the proposed alternatives are less effective than its proposed construction of the FDCA.” Id. at 50-51.
If adopted by the Supreme Court (and this is one of the few cases that a grant of certiorari can be described as "likely"), the analysis in Caronia will kill the FDA's speech-specific ban on off-label promotion - and along with it the government's monetization of that ban to collect billions of dollars in fines for what is First-Amendment protected activity. The states and their accompanying False Claims Act relators should see the money spigot shut off as well. Finally, in our product liability cases - in the Second Circuit immediately, and in other circuits once this rationale is adopted - plaintiffs will no longer be able to assert off-label promotion, in and of itself, as something that's tortious. Ever since New York Times v. Sullivan, tort litigation cannot be based on First-Amended protected conduct.
A great day today for the good guys!
PS: There's a "sky is falling" dissent that we'll discuss in the future, but right now, we have to get back to our paying work.