Catholic University Law Review


When the history of the first year of the United States Government’s response to the COVID-19 virus is written, there is likely to be mention of the still unexplained vehemence with which then president Donald J. Trump made use of his access to social media to promote seldom used anti-malaria drug, hydroxychloroquine, for both the prevention and treatment of COVID-19 despite the active growing opposition of most of the world’s scientists, including his own government scientists. While the use of drugs developed and approved by the FDA for different purposes to combat new diseases, off-label prescribing, is legal in the United States, the intense promotion of two drugs, hydroxychloroquine and ivermectin, cast a light on what has always been a gap in the law between the federal government’s power to approve drugs and the states’ power over the practice of medicine. In particular, former President Trump’s advocacy over twitter and in public appearances of hydroxychloroquine even after it had been found ineffective by the FDA and the efforts of families throughout the country to demand ivermectin, also found by the FDA to be ineffective, be administered to their loved ones being treated for Covid-19 in ICU units highlights the need to address this unsatisfactory compromise. Recent arguments that restricting drug companies from promoting their products off-label are in violation of the first amendment do not take into account social media fueled campaigns that effectively strip FDA of all ability to protect consumers from ineffective and perhaps unsafe drugs so long as it has ever approved them for any reason.