Bill Denying Tax Deduction for Drug Ads Unconstitutional

The Stark Bill is starkly unconstitutional under the First Amendment. Several separate and
distinct lines of constitutional reasoning support this conclusion, three of which are detailed here.
First, the intent of this bill is to ban or suppress advertising through the tax code. By attempting to
eliminate the tax deductibility of DTC advertising expenses for any new drug for the first two years
after approval, the Bill is a blatant attempt to suppress DTC advertising totally during that period, even
when the advertising is entirely truthful and not misleading. The central intent is not to raise tax
revenues; it is censorship, plain and simple. As the Supreme Court taught us long ago in Grosjean vs.
Am. Press Co., 297 U.S. 233 (1936), regulating speech under the “guise” of taxation is a particularly
“odious method” of regulation. 297 U.S. at 249. “It is bad because . . . it is . . . a deliberate and
calculated device in the guise of a tax to limit the circulation of information to which the public is
entitled in virtue of the constitutional guarantees [in the First Amendment].” 297 U.S. at 250.