On The Civil Liabilities For Drug Advertising

Drug advertising is both one of Drug manufacturers' promotional and marketing tools and animportant channel for consumer to learn drugs information. It is related to civil health rights andeconomic freedom of drug manufacturers. Thus, research about it is an important proposition. From themacro perspective of legal controlling, this thesis had a research with two points of penetration-constitutionality of the regulatory regime and civil liabilities. In this thesis, I made a detailed study onthe regulatory regime and civil liabilities of drug ads with methods of literature analysis, logical analysisand value analysis, complemented with case study methods and data analysis methods.This thesis is divided into three sections: the basic problems expounding, analysis of theconstitutionality of drugs prior censorship and drug ads civil liabilities. Concretely speaking, it isdivided into the following five parts:In the first part, concept of advertising and drug ads, legal relations among related parties in drugadvertising, basic contents of the legal controlling about drug ads and civil liabilities are discussed.In the second part, I did a comprehensive constitutionality examine to the prior censorship of drugadvertising according to the logical structure of " constitution of fundamental rights-limits tofundamental rights-justification bar of unconstitutionality ". The analysis found that the priorcensorship is adjudged unconstitutional because it doesn't meet the principle of proportionality. On thisbasis, several proposals to improve the supervision of drug ads were proposed.In the third part, I clarified the two theoretical basis of civil liabilities for drug advertising. Firstly,with the analysis of the legal nature of drug ads, it was considered an invitation to offer. At the sametime, there is an legal effect that the content of the drug ads will be included naturally in the contractwhen the contract is reached; Secondly, according to the three-stage-theory," deservedness ofconstitutive requirements-illegality-imputation ", I discussed constitutive requirements of the drugads tort liabilities.In the fourth part, I analysed contractual liabilities and tort liabilities of the drug advertiser, theissue about joint and several liabilities of drug advertising agents and publishers and civil liabilities ofthe attestor in drug ads, and discoursed remedies the consumer may claim based on the drug ads atdifferent stages.In the fifth part, I introduced two special reasons of counterplea about and the drug ads civilliabilities in American law, the Learned Intermediary Doctrine and Preemption. This thesis hold that thelearned intermediary doctrine can be applied in our law, and it can be included into tort liability systemthrough the discussion of causality or fault; and I tended to consider that the Preemption should beapplied in American tort action, but that the remedy of consumer tort litigation should be allowed inorder to response to the lack of relevant supervision. However, it is necessary to respect the professionalauthority of the authorities, and I advocated to ease the tension between the court and the authoritieswith the way of " amicus curiae brief ". Finally, this thesis reviewed discussions of the full text briefly, and summarized the researchconclusions.