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Perez v. Wyeth and Direct-to-Consumer Ads
Six years ago, in Perez v. Wyeth Laboratories Inc., 161 N.J. 1 (1999), the New Jersey Supreme Court enunciated a novel exception to the learned intermediary doctrine intended to address the rise of direct-to-consumer (DTC) marketing of prescription pharmaceuticals. The learned intermediary doctrine is a common law principle, codified in many states, that shields prescription pharmaceutical manufacturers from liability for failing to warn consumers of the potential side-effects associated with their products as long as they have adequately warned prescribing physicians. The Perez court, however, held that when pharmaceutical companies employ DTC advertising, there is an additional duty to warn consumers of potential risks.
Immediately following the controversial ruling, one legal commentator hailed Perez as a “precedent-setting decision likely to have a huge ripple effect within and beyond the pharmaceutical industry.” Ritter N: Learned Intermediary Doctrine: Drug Makers Get a Warning of Their Own. 8 New Jersey Lawyer: The Weekly Newspaper, Aug. 16, 1999, at 1725. Indeed, to many scholars, Perez signaled the end of the age of “doctor knows best,” and thereby the end of the learned intermediary doctrine's relevance. See Perez, 161 N.J. at 4.
Reports of the learned intermediary doctrine's eventual demise, however, were greatly exaggerated. Since Perez, no other jurisdiction that recognizes the doctrine has adopted the DTC exception. Nor, as many predicted, has the learned intermediary doctrine been legislatively eviscerated to combat the continued rise of DTC advertising for prescription pharmaceuticals. Rather, the public policy concerns underlying Perez have proven to be more adequately and efficiently addressed by regulatory enactments of the Food and Drug Administration (FDA), as well as self-policing on the part of the pharmaceutical industry itself.
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