Seizing a rare opportunity to promote socialism and batter the First Amendment, Democrats now back yet another ill-considered proposal to ban advertisements of new and innovative pharmaceuticals.  The official rationale is, of course, safety--because doctors and patients just aren't smart enough to figure out the risks and benefits of pharmaceuticals by themselves, and make rational medical choices based on that information.  No, even in an age when data on new drugs is available to anyone with an Internet connection and a basic grasp of the English language, TV-addled consumers will mindlessly seek expensive and unnecessary drugs for ailments that require little more than an organic diet and access to a living wage.

I'm sure many of us deplore medical ads.  I know I've seen that commercial for Viagra that airs during the early evening, and thought, "Great.  Now I'll have to explain 'erectile dysfunction' to my four-year-old."  I've also been known to snort derisively at "restless leg syndrome."  Even so, I must admit these much-decried medical advertisements serve several valuable purposes: prompting doctor visits, increasing awareness of new medications and newly-discovered medical conditions, and leading patients to get drugs they need.

Moreover, the Democrats' proposed ban on new drug ads would virtually kill pharmaceutical research and innovation.  The estimated cost of developing a new drug was $803 million in 2003.  Nearly 40% of that cost goes to FDA-mandated testing in the name of "patient safety."  Thus, the government causes drug development costs to skyrocket--and then clamps down on the people allowed to learn about the new product by banning all advertisement of that product!  With all of these "safety" inspired roadblocks to drug development, you'd think that the developing new cures was a leading cause of cancer in America.

I'm sure for those liberal in the audience, these practical rationales mean little in the face of spitting in the eye of "Big Pharma."  So here's the best reason why this proposal should die a well-deserved death: it's completely unconstitutional.

In fact, in 2007, a similar drug advertising ban wound its way through Congress.  It failed miserably, due to legislators' justified concern that such a total prohibition would violate even the weakened First Amendment protections afforded to commercial speech.  The First Amendment protects commercial speech as something of a "second-class" citizen.  Because of the government's "traditional" role in regulating commercial speech, ads are subject to a test laid out in Central Hudson Gas & Elec. Co. v. Public Service:

Provided the commercial speech concerns lawful activity (like the promotion of lawful drugs) and is not misleading (like a drug ad that discloses known risks and benefits of a product), then the government seeking to promote a substantial government interest (like the public health) cannot be overly extensive.  So the question for the Democrats is: "Is a total ban on new drug ads "more extensive than necessary" to promote the public health?

Turns out that we don't have to ponder this question in the abstract for too long.  The Supreme Court already answered this question in 1976.  In Virginia State Board of Pharm. v. Virginia Citizens Consumer Council, Inc., the Court ruled against "highly paternalistic" laws banning pharmacies from advertising drug prices.  In Virginia State, the state had been concerned that ads would cause consumers to purchase drugs based solely on price (!) rather than loyalty to a certain pharmacist--a process that would damage the all-important pharmacist-patient relationship by forcing pharmacists to compete in the evil, evil marketplace.

And just as examining Virginia State shows us why this proposal is unconstitutional, Virginia State shows us the true reason why liberals want to ban medical advertisements.  It's all about resistance to the marketplace.  Liberals want socialized medicine.  Drug development and improvement through competition is as antithetical to socialism as holy water is to a vampire.  Socialized medicine will stifle innovation and growth.  The more drugs that we see being produced now, under a capitalistic system, the more we will know what we lost when Obama finally brings us the hope and change usually associated with the former Soviet Union.

The FDA monitors advertisements for truthfulness and full risk disclosure.  Any further governmental regulation--including and especially a blanket ban on advertising new drugs--is nothing more than a calculated step towards advancing communism.