by Dick Hall-Sizemore

Tom Garrett, who was formerly a state senator, then a member of the U.S. House of Representatives, and is now a member of the House of Delegates from Goochland County, has called on President Trump to rein in drug prices.

One of his suggestions is to prohibit drug companies from advertising. Saying that many of the large pharmaceutical companies spend more on advertising and marketing than they do on research and development, he contends that “America is the most overmedicated society on Earth.” He concludes, “Ending direct-to-consumer pharmaceutical advertising wouldn’t just rein in an industry that prioritizes marketing over innovation — it would save lives, free up resources for real research, and lower drug costs for everyday Americans.”

I agree with him. There is just one little problem: the U.S. Supreme Court has held that pharmaceutical advertising is protected speech under the First Amendment.

Furthermore, it was a Virginia case that set the stage for all the drug company ads that bombard us constantly. In the 1976 case, Virginia Pharmacy Board v. Virginia Consumer Council, the Supreme Court struck down a Virginia regulation that prohibited pharmacists from advertising prices of specific drugs. In dissent, Justice Rehnquist (he was not Chief Justice yet) pointed out that the decision would allow pharmacists not only to advertise prices, but to push specific drugs. He predicted the following advertisement:

“Pain getting you down? Insist that your physician prescribe Demerol. You pay a little more than for aspirin, but you get a lot more relief.”

“Can’t shake the flu? Get a prescription for Tetracycline from your doctor today.”

“Don’t spend another sleepless night. Ask your doctor to prescribe Seconal without delay.”

The advertising, of course, was not to be limited to pharmacists. The pharmaceutical industry got into it big-time. As the author of one law review article noted, “Just as Justice Rehnquist predicted, Virginia Pharmacy Board unleashed a wave of DTC [direct to consumer] advertising for prescription medications. These days, DTC advertising for drugs designed to treat ailments ranging from insomnia, anxiety, hair loss, and high blood pressure to sexual dysfunction and arthritis, is a standard feature on all media.”

Del. Tom Garrett is a lawyer. He should know this.