As the Fool's online editor for the health-care industry, I've seen all kinds of strange things cross my desk. Last week, I saw one of the strangest -- and potentially one of the scariest, in my opinion -- come from drugmaker Allergan
Allergan, which makes the popular antiwrinkle medicine Botox, filed suit against the federal government late last week, seeking to lift the Food and Drug Administration's ban against off-label marketing of drugs on the basis that it is, of all things, a violation of the company's First Amendment rights.
Quick aside here: Drugmakers are only allowed to market drugs for approved, or "on-label," uses. However, doctors may prescribe a drug for nonapproved, off-label, uses.
Now, setting aside the issue of whether a potentially immortal entity -- Johnson & Johnson
First, do we, as consumers of an increasingly expensive health-care system, want companies to be able to spend even more money to promote their drugs? One 2008 study, which looked at the latest-available 2004 data, estimated that in the U.S., 24.4% of every dollar of drug revenue went toward promotion, compared with just 13.4% for research and development.
Second, there's a very good reason why drugmakers are only allowed to market a drug for an on-label use: The drug has actually been tested for that use and is considered safe. Even then, problems can and do crop up. Remember Vioxx from Merck
Besides, the Supreme Court has ruled that drugmakers are liable for problems when a drug is administered incorrectly, even for an approved use. Why would Allergan want to open itself and every other drugmaker up to a broader range of liability?
Third, companies are already pushing the envelope, going after those all-important sales. Eli Lilly
You can believe that if you want.
Me? If I were an Allergan shareholder, I'd be making my displeasure known to management. After all, the shareholders own the company.
What do you think? Sound off on corporations and constitutional rights in the comments section below.
Fool.com biotech and pharma editor Jim Mueller owns shares of Johnson & Johnson, but no other company mentioned. Pfizer is a Motley Fool Inside Value recommendation. Johnson & Johnson is a Motley Fool Income Investor pick. The Fool is about investors writing for investors and, at times, shareholder activism.