The final alternative, devising an entirely new set of regulations to cover Internet advertising and promotion of drugs and medical devices, is unlikely to be successful given that rapid technological advances can render such regulations obsolete by the time they are published. Administrative issues aside, the most difficult issue for the agencies and the industry is constitutional in nature. Requiring drugs and medical devices to be advertised with appropriate balance and restraint is easier and arguably more important in traditional media, where consumers cannot readily obtain additional information about potentially dangerous products. On the Internet, however, consumers, physicians and drug and device marketers have equal access to information. Any person with a modem can search for other Web sites to view competitors' products, verify promotional material by consulting online versions of medical journals or discuss advertisers' claims with other interested patients.
Product liability is another important legal issue in Internet drug and medical device promotion.
They might also choose to make some information accessible only by subscription. However, all of these decisions would entail costly screening devices that could price these companies off the Internet entirely, removing valuable medical information from the online marketplace. Many Internet advocacy groups espouse a libertarian view of information access and are unlikely to accept such paternalistic restrictions, whether applied by governments or private corporations. The possible preemption of state law is yet another legal issue in Internet marketing of drugs and medical supplies. Because the Internet and Web are part of a global medium, companies promoting their health care products online might find it extremely difficult to comply with a potentially overwhelming, and possibly even contradictory, body of regulations issuing from various state and national governments.