We live in a free society. One of our most treasured freedoms is our right to free speech. This means that we are free to advertise goods and services to potential customers, although commercial speech does not enjoy the same constitutional protection as does noncommercial speech. Some advertised products are good for us and others aren't. In many cases, the worth and value of the product are in dispute. Nevertheless, if a product is legal, the manufacturer is entitled to advertise and to lure customers.
While an advertisement may not be false, it may not be the complete truth either. We expect that these pitches will be buffed and sanitized to present the product in a favorable light. That's why they're called advertisements, and not testimony.
It would be absurd for a company to include negative material about its products in its promotional materials, barring a legal requirement to do so. While issuing product warnings and legal disclaimers may be a laudable public interest maneuver, it's not a way to run a company.
Imagine the following scenarios:
Join Our Tanning Salon. Get skin cancer!
Join Our Gym. Have a stroke on our treadmills!
Dine at our Family Restaurant. We don't wash hands!
Computer Protective Services Our PCs have viruses!
Expert Car Repair. We're Crooks!
The tobacco companies, the mother of all villains, had been required by the Food and Drug Administration (FDA) to include graphic and dire death and illness warnings prominently on their packages. One of the warnings depicts a corpse with the traditional autopsy incision visible.
I don't dispute the accuracy of the health claims. Indeed, I've often issued them personally as a doctor in my office. But is it fair, reasonable and necessary to compel cigarette companies to scare folks from purchasing their legal products? It would be more rational and intellectually honest for the FDA and the federal government to declare tobacco to be illegal. How can they permit a product so dangerous to be freely sold to the public? The reasons that restrain them from doing so are self-evident. Readers are free to offer their own views on the government's paradoxical (in)action.
A federal judge recently issued a preliminary injunction against the FDA's edict arguing that the cigarette companies were likely to prevail in a First Amendment challenge. The judge recognized that graphic and macabre material likely exceeded a reasonable government requirement to inform smokers of health risks on cigarette packaging. Their purpose was quite transparently to shock, not inform. Not surprising, my beloved liberal New York Times has editorialized that the judge's injunction was wrong. This judge, in my view, was spot on. I predict that his ruling will be upheld on appeal.
As an aside, are there folks out there who are not aware that smoking cigarettes is not a salubrious activity?
Our medical office needs new promotional material. Since I'm a taxpayer, perhaps the FDA can assist me. Here's my draft:
Michael Kirsch, MD
Specialist in Screening Colonoscopy
WARNING! He Has Perforated Many Colons. You Might End Up Here!
This post by Michael Kirsch, FACP, appeared at MD Whistleblower. Dr. Kirsch is a full time practicing physician and writer who addresses the joys and challenges of medical practice, including controversies in the doctor-patient relationship, medical ethics and measuring medical quality. When he's not writing, he's performing colonoscopies.