Manufacturers of prescription drugs have begun to market their products more aggressively than they did in the past. These marketing efforts are not confined to health care professionals alone; pharmaceutical companies now engage in extensive direct-to-consumer advertising on radio and television, in the print media, and even on the Internet. While these promotional efforts no doubt increase sales, they may also lead to greater tort liability for drug-related injuries. The most likely theories of liability are failure to warn and negligent marketing. Liability for inadequate warnings will almost certainly increase if courts abandon the learned intermediary rule and require drug manufacturers to warn consumers instead of physicians when they engage in direct-to-consumer advertising. In addition, injured consumers may make negligent marketing claims in cases where there is evidence that pharmaceutical companies have pressured physicians to over-prescribe their products or where these companies have failed to exercise some control over doctors or pharmacists who facilitate abuse of prescription drugs.
Richard C. Ausness, Will More Aggressive Marketing Practices Lead to Greater Tort Liability for Prescription Drug Manufacturers?, 37 Wake Forest L. Rev. 97 (2002).