My comment: The FDA prohibits drug or device manufactureres from promoting "off label" use. The requirements to get a label indication is a high bar but is intended to protect the public from marketing that is not backed by good evidence. Is off label promotion free speech or is it more like yelling fire in a crowded theater?
The issue of free speech in prescription drug marketing will get a fresh look when a federal appeals court in San Francisco considers whether a biotech executive committed fraud in touting a lung-disease drug.
Potentially jeopardized in both cases is a set of FDA regulations prohibiting drug companies from off-label marketing, or marketing a medicine for purposes not approved by the agency. Also threatened is the government's extracting of billion-dollar settlements from companies that do just that.