The long wait is over. Here is the Second Circuit’s decision in United States v. Caronia, No. 90-5006-cr, slip op.
(2d Cir. Dec. 3, 2012). By a 2-1 vote, Mr. Caronia’s conviction for off-label promotion is reversed on First Amendment grounds. The ruling is unmistakable. There was no question that off-label promotion had occurred. Slip op. at 14-16. The sole basis for vacating the conviction was the government’s failure to prove that any of the alleged promotion was false.
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:
for his speech, but that Caronia’s promotion of [an] off-label use served
merely as “evidence of intent,” or evidence that the “off-label uses were
intended ones for which [the drug’s] labeling failed to provide any
The majority in Caronia didn’t buy the change of tactics. “[T]hat is not what happened in this case.” Id. at 28.
for his speech. A pharmaceutical representative’s promotion of an FDA-approved drug’s
off-label use is speech. As the
Supreme Court has held: “Speech in aid
of pharmaceutical marketing . . . is a form of expression protected by the Free
Speech Clause of the First Amendment.” Sorrell
v. IMS Health, Inc., 131 S. Ct. 2653, 2659 (2011). Here, the proscribed conduct for which Caronia
was prosecuted was precisely his speech in aid of pharmaceutical marketing.
The Court then quite explicitly rejects an off-label promotion ban as required by the FDCA, because to do so would be unconstitutional:
FDCA’s misbranding provisions to criminalize the simple promotion of a drug’s
off-label use by pharmaceutical manufacturers and their representatives because
such a construction − and a conviction obtained under the government’s
application of the FDCA − would run afoul of the First Amendment.
Caronia, slip op. at 33.
“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.
the FDCA’s misbranding provisions imposes content- and speaker-based
restrictions on speech subject to heightened scrutiny. Second, we conclude the government cannot
justify a criminal prohibition of off-label promotion even under [the] less
rigorous intermediate test.
Caronia, slip op. at 39.
First, the FDA’s regime banning off-label promotion is “content based” − that is, based upon what is being discussed and thus not neutral:
“disfavored speech on the basis of the ideas or views expressed.” Under this construction, speech about the
government-approved use of drugs is permitted, while certain speech about the
off-label use of drugs − that is, uses not approved by the government − is
prohibited, even though the off-label use itself is not. Indeed, the content of the regulated speech
drives this construction of the FDCA; as in Sorrell, the “express
purpose and practical effect” of the government’s ban on promotion is to
“diminish the effectiveness of [off-label drug] marketing by manufacturers.”
Caronia, slip op. at 40 (citing Sorrell, other citations omitted). It is also speaker-based, as anybody no matter how medically ignorant, can advocate off-label uses, except the manufacturers:
one kind of speaker – pharmaceutical manufacturers − while allowing others to
speak without restriction. . . .
B]ecause off-label prescriptions and drug use are legal, the
government’s application of the FDCA permits physicians and academics, for
example, to speak about off-label use without consequence, while the same speech
is prohibited when delivered by pharmaceutical manufacturers. This construction “thus has the effect of
preventing [pharmaceutical manufacturers] − and only [pharmaceutical manufacturers]
− from communicating with physicians in an effective and informative
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
- “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.
Thus the FDA’s off-label promotion ban, even if construed as involving only commercial speech, is unconstitutional under the First Amendment. The court therefore construes the FDCA as allowing truthful promotion of off-label uses.
FDCA’s misbranding provisions to prohibit manufacturer promotion alone as it would
unconstitutionally restrict free speech. We construe the misbranding provisions of the
FDCA as not prohibiting and criminalizing the truthful off-label promotion of
FDA-approved prescription drugs.
Caronia, slip op. at 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.