The Scholar: St. Mary's Law Review on Race and Social Justice


Drug direct-to-consumer advertisements manipulates the public through the manufacturer’s marketing practices. The goal of pharmaceutical companies is to create consumer demand for their products, and they achieve this goal by showing advertisements that portray their products as life-enhancing. This leads to an exponential increase in demand for and spending on these pharmaceutical drugs. This increased promotion of direct-to-consumer advertising affects the physician-patient relationship, while drug companies face little, if any, liability. Drug companies expend significant efforts to obtain patents to keep their products competitive on the market, and to prevent customers from switching to an inexpensive generic drug. The author explains that the learned intermediary doctrine shields drug manufacturers from liability for failure to warn claims brought by patient-recipients of their products, because the medication was only available to the consumer through a physician’s prescription. This doctrine insulates drug companies from liability because they are not held to the same regulations and penalties as other sellers who advertise directly to the public. The comment proposes that pharmaceutical companies be required by FDA guidelines to consult with the medical community before launching a drug advertising campaign. It also proposes eliminating existing loopholes in the drug patent system, as this would allow more time and resources for research and development. Finally, the author proposes reevaluating the effectiveness of the learned intermediary doctrine and shifting the potential for liability to the pharmaceutical industry. The current system of direct-to-consumer drug advertisements is manipulative to consumers and damaging to the physician-patient relationship all while shielding the pharmaceutical industry from liability.

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St. Mary's University School of Law



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