WLF seeks money from FDA over First Amendment loss

Medical Marketing and Media, Jul 2000 by Dickinson, James G

The Washington Legal Foundation (WLF) went back to federal court in June with a request that the FDA be ordered to pay a "substantial" fee award under the Equal Access to Justice Act for its loss in the long-running, and still unresolved, First Amendment case on communication about off label uses of FDA-approved products. WLF Chief Counsel Richard Samp told Dickinson's FDA Webview (www.fdaweb.com) that this motion will give federal judge Royce Lamberth "another opportunity to determine the merits of our case." Lamberth has yet to respond to a motion the WLF filed in April asking that the FDA be forced to comply with his injunction prohibiting the agency from blocking the First Amendment rights of drug companies who disseminate off label use information about approved products.

While normally each side pays its own attorney fees, Samp explained, there are exceptions. Under the Equal Access to Justice Act, the government can be forced to pay fees when it loses a case if the opposing party is a small entity and can demonstrate that it "substantially prevailed" in the case such that the government's position was not substantially justified.