Does the ACCME's Latest Proposal Encroach on Free Speech?

Over at The Carlat Psychiatry Blog, Daniel Carlat finally takes a look at the latest proposal by the ACCME to restrict those writers or physicians who engage in industry-funded promotional efforts (eg, speakers' bureaus) from also producing independent CME. While, to some, this proposal seems to encroach on First Amendment issues, Carlat pooh-poohs the argument. Quel surprise.

Among the various specious arguments I've heard against this policy, the most astonishing is the censorship argument. By forbidding doctors on company speakers bureaus from writing accredited CME, so the argument goes, ACCME is "censoring" them. At Policy and Medicine, for example, Tom Sullivan, president of the MECC Rockpointe, says that "banning certain authors from writing books and giving talks doesn't seem to accord with freedom of speech, but that is exactly what the ACCME is proposing."

Come on folks. Let's get real. ACCME is not preventing anybody from saying or writing anything they want, anywhere, at any time. They are simply witholding[sic] a lucrative seal of approval from speech that does not meet their requirements. When Good Housekeeping Magazine witholds[sic] its seal of approval from a shoddy product, they are not preventing the company from making it. The shoddy product can still be sold; the company just can't use the seal to market the product.

Similarly, ACCME is saying that medical communication produced by people who take marketing money from drug companies no longer meets its standards for high quality CME, and it will no longer accredit such communication. MECCs are still free to provide it, print it, circulate it in conferences, but it won't be accredited information. How is this "censorship?"

Here's potentially how. As I understand it (although I'm certainly not a legal scholar), freedom of speech comes into play at the juncture of government and the public. To my knowledge, all state governments require that physicians acquire so many credit hours per year of certified CME to maintain their licensure. The ACCME is the only organization (again to my knowledge) that accredits educational groups (medical associations, academic CME offices, MECCs) to provide certified CME to physicians. Therefore the ACCME is proposing limitations on who can produce or deliver government-required CME—what can be reasonably argued as a restriction on free speech.

In any event, the ACCME's proposal sure feels like it encroaches on First Amendment rights (Dr. Carlat's opinion excepted), in which case some legally informed somebody should figure out why (if the above is not accurate). Also the ACCME would be wise to seek legal counsel before proposing such restrictions.

Comments to the ACCME's latest proposal can be submitted here, through tomorrow (9/12/08).

ACCME = Accreditation Council for Continuing Medical Education; CME = continuing medical education; MECC = medical education communications company.