Consumers make decisions all the time regarding various drugs, most notably over-the-counter medications, and we’re bombarded with advertising to influence our purchase decisions. For prescription drugs and other health care products, our doctors determine what we should use – and it’s that step in the decision-making process over which Big Pharma wants to gain greater control. And they’ve got protection from an unlikely source – the First Amendment of the U.S. Constitution.

In a 2011 case, the state of Vermont sought to restrict pharmaceutical companies from obtaining data about how specific doctors write prescriptions, information that the companies could then use to encourage doctors to write more prescriptions for their drugs. Despite a backdrop of public outcry for patient privacy rights, federal laws such as the Health Insurance Portability & Accountability Act (HIPAA), and restrictions imposed by the U.S. Food & Drug Administration, the U.S. Supreme Court ruled against Vermont, proclaiming that “[s]peech in aid of pharmaceutical marketing… is a form of expression protected by the free-speech clause of the First Amendment.”

Where some might see the Court’s decision as carte blanche for Big Pharma, the fact remains that all forms of medical marketing must be truthful. Patients and the general public can take solace in the fact that the consequences for circumventing the truth can be severe.

For example, in November 2011, pharmaceutical giant Merck Inc. agreed to pay $950 million to settle both criminal and civil charges based on its alleged improper promotion of Vioxx, a painkiller eventually taken off the market after it was found to increase the chance of heart attack.

In another matter also decided in November 2011, three executives from medical-device maker Synthes Inc. were sent to prison for their roles in a deadly and illegal bone-cement clinical trial. Neither the executives nor the company sought approval for the testing method, which ultimately caused three patients to die on the operating table. In response to the defendants’ claims that they had a right to promote the bone cement treatment according to the First Amendment, the presiding judge found them guilty of “shameful behavior” that disregarded patient safety.

During a health-care fraud summit in June 2011, U.S. Attorney General Eric Holder, Jr. said, “If individuals can be held responsible for the actions we investigate, it is our intention to send them to jail and hold them personally liable… To the extent we can make cases against individuals, we will do so. That is, I think, in some ways the most effective deterrent we can use.”

The Philadelphia Inquirer provided the bulk of the information behind this post.

How do you feel about this? Where do you stand? Let us know your thoughts, and if you or someone close to you has sustained an injury as a result of misleading medical information, please contact us – we’d be happy to help.