BUSI 561 Week 3 DB Forum 1: Replies Example

Discussion Board Forum 1: Replies

BUSI 561 Legal Issues in Business, Discussion Board Forum 1: Replies

Thread by [Student Name]

The two classmates and their threads are composites; the cases, the research and the Scripture cited are real, and the requirements follow Liberty's public course guide for BUSI 561.

Reply to Brandon

Brandon, your thread argued that the government should be able to restrict prescription drug advertising broadly, because patients cannot judge the claims and the ads drive demand for expensive medicines. I share your concern about misleading ads, but I think current constitutional doctrine makes a broad restriction much harder than your thread suggests, and the scholarship helps explain why.

The Supreme Court first extended First Amendment protection to purely commercial speech in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), a case about advertising drug prices. In Central Hudson Gas & Electric Corp. v. Public Service Commission (1980), it set out the test still used today: truthful speech about lawful activity may be restricted only if the government has a substantial interest, the restriction directly advances it and it is no more extensive than necessary. Langvardt (2000), examining the Court's decision striking down a federal ban on casino advertising, showed how the Court had been applying that test with increasing rigor, refusing to accept the argument that keeping people ignorant is a legitimate way to discourage lawful choices. Sorrell v. IMS Health Inc. (2011) continued the trend by striking down a Vermont law that restricted the use of prescriber data for drug marketing.

Scholars have questioned whether commercial speech deserves less protection at all. Kozinski and Banner (1990) argued that the line between commercial and noncommercial speech is difficult to draw and that much commercial speech carries information as valuable to listeners as political speech. Reed (1996) similarly argued that the Court's categories obscure the real values at stake and that information about products can matter a great deal to people's lives. For drug advertising, that argument has force: some patients learn of treatments for conditions they did not know could be treated.

Where your argument is strongest is deception. Misleading commercial speech receives no constitutional protection, and the Food and Drug Administration already requires drug ads to present risks fairly. Scripture draws a similar line: Proverbs 12:22 says that the Lord detests lying lips but delights in people who deal faithfully (English Standard Version Bible, 2001/2016). The biblical objection is to falsehood, not to information, and that is also where the First Amendment draws its line. A better policy target would be stronger enforcement against ads that minimize risks, rather than a ban on truthful ads. Regulators could also require that the most serious risks appear in the same type size and speaking pace as the benefits, a disclosure rule that courts have generally treated more favorably than outright bans, because it adds information rather than suppressing it. Your concern about cost could be addressed in the same spirit, by requiring ads to say whether a cheaper generic alternative exists. Would that approach address the harms you described?

Reply to Kim

Kim, your thread on National Pork Producers Council v. Ross (2023) was excellent, and I agreed with your observation that the case left pork producers in other states uncertain about how far California's rules can reach. Proposition 12 bans the sale in California of pork from pigs confined in spaces smaller than its standards, wherever the pigs were raised, and the Court rejected the producers' dormant commerce clause challenge in a fractured decision. I want to add three scholarly perspectives that explain why the case was so difficult, since the outcome turned less on the facts than on what the doctrine is for.

The first is Regan (1986), who argued that the core of the Court's dormant commerce clause cases is a prohibition on purposeful protectionism: laws intended to benefit in-state businesses at the expense of out-of-state competitors. Proposition 12 applies the same standards to California and out-of-state farms, so under Regan's view it does not violate the core principle, which helps explain why the producers did not argue that it discriminated.

The second is Eule (1982), who grounded the doctrine in political representation. Out-of-state businesses cannot vote in a state's elections, so the courts protect them from laws they had no voice in making. That rationale cuts the other way in Ross: the farmers who bear most of Proposition 12's compliance costs are in Iowa and North Carolina, and they had no vote in California's initiative. The tension between Regan's focus on purpose and Eule's focus on representation is part of why the Justices divided.

The third is Coenen (1998), who examined why states may subsidize their own businesses but may not tax out-of-state ones in discriminatory ways, and concluded that the doctrine's distinctions often rest on practical judgments about which state measures most threaten a national market. Ross is a reminder that those judgments remain contested as states increasingly regulate products by how they are made elsewhere.

Scripture speaks to the fairness question at the heart of the doctrine. When Moses appointed judges, he charged them to hear cases between their brothers and to judge righteously between a man and his brother or the stranger living among them, without partiality (Deuteronomy 1:16-17). The principle of equal justice for outsiders is close to what the dormant commerce clause tries to protect. For businesses, the practical lesson of Ross is that a large state market can set standards for an entire national industry, since few producers can afford to run separate supply chains for one state. Companies that sell nationally should therefore watch ballot initiatives and regulations in their largest markets, not only federal law. Do you think a law that applies equally on its face, but whose costs fall mostly on outsiders, honors that principle?

References

Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).

Coenen, D. T. (1998). Business subsidies and the dormant commerce clause. The Yale Law Journal, 107(4), 965-1053. https://doi.org/10.2307/797204

English Standard Version Bible. (2016). Crossway. (Original work published 2001)

Eule, J. N. (1982). Laying the dormant commerce clause to rest. The Yale Law Journal, 91(3), 425-485. https://doi.org/10.2307/795926

Kozinski, A., & Banner, S. (1990). Who's afraid of commercial speech? Virginia Law Review, 76(4), 627-653. https://doi.org/10.2307/1073208

Langvardt, A. W. (2000). The incremental strengthening of First Amendment protection for commercial speech: Lessons from Greater New Orleans Broadcasting. American Business Law Journal, 37(4), 587-652. https://doi.org/10.1111/j.1744-1714.2000.tb00280.x

National Pork Producers Council v. Ross, 598 U.S. 356 (2023).

Reed, O. L. (1996). Is commercial speech really less valuable than political speech? On replacing values and categories in First Amendment jurisprudence. American Business Law Journal, 34(1), 1-38. https://doi.org/10.1111/j.1744-1714.1996.tb00959.x

Regan, D. H. (1986). The Supreme Court and state protectionism: Making sense of the dormant commerce clause. Michigan Law Review, 84(6), 1091-1287. https://doi.org/10.2307/1288976

Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).