1. What is the Learned Intermediary Rule? Explain the context in which it became law.
2. On what legal grounds does the majority believe that the Learned Intermediary Rule does not apply where drugs are advertised directly to consumers? How does the dissent view this issue?
3. In the European Community, direct-to-consumer advertising of prescription drugs is prohibited. What, if anything, is recommended to regulate DTC ads by consumer advocates in the United States?
4. One theme of the Perez case is the degree to which consumers today are active, aware, and taking responsibility for their own health, rather than passive and in awe of medical expertise. Direct-to-consumer advertising—estimated at $58 billion as of 2005—is premised on the notion that consumers will be driven to want certain prescription drugs, and to ask for them by name when they see their doctors.
(a) From a consumer perspective, what are the pros and cons of DTC advertising?
(b) Who are the major stakeholders in the pharmaceutical direct-to-consumer scenario? Does this type of marketing create “the greatest happiness for the greatest number,” in utilitarian terms? What might a deontological thinker say about DTC marketing?