Still More on the Second Circuit’s Decision in Caronia

by Brian Wolfman

We have now posted twice (here and here) about the Second Circuit's Caronia decision, in which the court ditched the misdemeanor conviction of a drug company prescription drug representative, saying that his promotion of one of the company's products was protected by the First Amendment. I've posted about the case because it may prove to be an important ruling on the intersection of the First Amendment and health and safety regulation. Some people think the decision sweeps broadly, possibly making it difficult for regulatory agencies to get their jobs done. The dissenting judge in Caronia, Debra Ann Livingston, appears to be in this camp:

By holding … that Caronia’s conviction must be vacated—and on the theory that whatever the elements of the crime for which he was duly tried, he was in fact convicted for promoting a drug for unapproved uses, in supposed violation of the First Amendment—the majority calls into question the very foundations of our century-old system of drug regulation.

But there are differing views. Here's a long post from the Drug and Device Law blog that sees Caronia as a good, but fairly narrow decision. (The post does takes the view that Caronia's reasoning applies to promotion of medical devices as well as to the promotion of drugs. It also discusses Caronia's implications for federal preemption of state-law damages claims.)

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