Free Speech vs. Commercial Speech

freevscommercial

When we drill down to the core issue of FDA compliance we are faced with the blurred line between free speech and commercial speech. Let's take a look at the difference.

If we are protected by the first amendment, then why can't we say whatever we want? The first amendment allows us to express ourselves, but when we start promoting a specific brand or product then we fall out of the Free Speech category and enter into Commercial Speech. Even though this is still somewhat covered under the first amendment, the Federal Trade Commission (FTC) is responsible for making sure the types of advertising claims made are not deceptive or misleading. The FDA and FTC is not opposed to making medical claims as long as they are backed up by scientific evidence, and if members continue to treat people, diagnose their symptoms, and try to cure what ails them, then we push Young Living and its products into the drug category unknowingly and become subject to the regulations that accompany making drug claims.

Here are some of the things that fall under commercial speech:

Promoting or selling through:

  • printed materials
  • infomercials
  • websites
  • blogs
  • social media sites
  • private/secret social media groups
  • live classes and events

If you are in doubt about whether you fall under free speech or commercial speech, think about the evidence of intent. If you are intending that someone buy or use the product you recommend, then it's commercial speech. If you are making a blanket health statement and not promoting one company or product specifically, then you are in the realm of free speech. The FDA will ultimately look at the evidence of intent.