1 Analyses of this case by attorneys

  1. WLF “Legal Opinion Letter” Decries Proposed DTC Legislation as Unconstitutional

    Hyman, Phelps & McNamara, P.C.September 10, 2007

    The central intent [of H.R. 2823] is not to raise tax revenues; it is censorship, plain and simple. As the Supreme Court taught us long ago in Grosjean vs. Am. Press Co., 297 U.S. 233 (1936), regulating speech under the “guise” of taxation is a particularly “odious method[]” of regulation. . . . Second, the “perfect balance” provisions of the Stark Bill that would eliminate tax deductibility for expenses for DTC advertising under § 502(n) of the [FDC Act] have serious due process problems that compound the underlying First Amendment concerns. . . . [U]nder the “perfect balance” provisions, the FDA could make a unilateral decision that has the effect of banning speech in advertising that is otherwise truthful and not misleading.