FDA urged to consider court's marijuana ruling

Medical Marketing and Media, Jan 2003

The FDA should examine the analytical framework used by the Ninth Circuit Court of Appeals in deciding a medical marijuana First Amendment case and apply it to its ongoing free speech review, Pfizer associate general counsel George Evans and senior corporate counsel Arnold Friede wrote in a Nov. 15 Washington Legal Foundation opinion letter.

The attorneys said this opinion "supports the proposition that mere dissemination, without overt promotion, of scientific and medical information about an `off-label' use of an FDA-approved drug to a physician entitled to make a lawful prescribing decision merits substantial First Amendment protection." The case, Conant v. Walters, saw the three-judge panel characterizing the "government's rationale for attempting to limit speech by a physician to a patient that 'recommends' use of marijuana for medical purposes as the functional equivalent of the paternalistic rationale advanced by the FDA to justify suppression of pharmacist advertising for specific compounded drugs struck down by the Supreme Court in its 2002 Thompson v. Western States decision," the attorneys said.