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WASHINGTON LEGAL FOUNDATION v. HENNEY

No. 99-5304.

202 F.3d 331 (2000)

WASHINGTON LEGAL FOUNDATION, Appellee v. Jane E. HENNEY, Commissioner, Food and Drug Administration, and Donna E. Shalala, Secretary, U.S. Department of Health and Human Services, Appellants

United States Court of Appeals, District of Columbia Circuit.

Decided February 11, 2000.

Attorney(s) appearing for the Case

William B. Schultz, Deputy Assistant Attorney General, United States Department of Justice, argued the cause for appellants. With him on the briefs were David W. Ogden, Acting Assistant Attorney General, Douglas N. Letter and Michael S. Raab, Attorneys, Wilma A. Lewis, United States Attorney, Eric M. Blumberg, Deputy Chief Counsel for Litigation, Food and Drug Administration, and Annamarie Kempic, Associate Chief Counsel for Enforcement.

Bert W. Rein argued the cause for appellee. With him on the brief were Daniel J. Popeo, Richard A. Samp, Andrew S. Krulwich, Thomas W. Queen, Daniel E. Troy, and Michael L. Sturm.

Matthew Van Hook, Peter Barton Hutt, Bruce N. Kuhlik, and Michael S. Labson were on the brief for amicus curiae Pharmaceutical Research and Manufacturers of America.

Arthur B. Spitzer and Daniel I. Prywes were on the brief for amicus curiae American Civil Liberties Union of the National Capital Area.

Before: SILBERMAN, WILLIAMS, and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

The government appeals a district court decision holding that the Food and Drug Administration Modernization Act of 1997, which establishes procedures by which drug and medical device manufacturers may disseminate information about "off-label" uses for their products, violates the First Amendment. In light of the government's appellate position that the statute does not provide...

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