50 years ago... Inside... - Chattanooga Bar Association

2 Friday, February 20, 2009 HAMILTON COUNTY HERALD
Tennessee adds new terms to 2007 judgment against Bayer
Bayer must submit proposed
television ads for its oral contraceptive
“Yaz” to FDA for
approval and must spend $20
million to correct misinformation
from prior television advertisements
as part of a revised
agreement with Tennessee and
27 other states.
Attorney General Bob
Cooper filed on behalf of the
Division of Consumer Affairs a
stipulated supplemental judgment
against Bayer Corporation.
The agreement adds new
requirements to a 2007 judgment
concerning its product
advertising. The 2007 agreement
concerned problems with alleged
deceptive advertising of products
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including non-disclosure of safety
risks associated with its marketing
of a cholesterol-lowering
drug, Baycol. The judgment
resolves allegations that Bayer’s
2008 marketing of the oral contraceptive
Yaz violated the earlier
agreement.
The supplemental settlement
requires Bayer to submit all
future television Yaz advertisements
to the FDA for review and
comment prior to dissemination;
to comply with all regulatory
comments the FDA makes
regarding the advertising; and in
all Yaz print advertisements, to
clearly and conspicuously disclose
exactly what the drug is
FDA approved for when refer-
file a simple return. Some specialize
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Take a tax credit of up to
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ring to treatment of medical
conditions and their symptoms.
In an earlier warning letter
to Bayer, the FDA addressed two
misleading television ads for Yaz
where Bayer included premenstrual
syndrome (PMS) as a condition
it could be used to treat.
The FDA has not approved Yaz
to treat PMS. The letter also
warned Bayer about promoting
Yaz for types of acne that it is not
approved to treat and for exaggerating
the effects Yaz had on
acne.
“We believe the joint efforts
between the federal government
and the states will help ensure
the public’s safety from misleading
drug advertisements,”
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$42,000 and two or more children
could qualify for up to
$4,824.
(NEW) Deduct your real
Cooper said.
Tom Abrams, director of
the FDA’s Division of Drug
Marketing, Advertising and
Communications, added, “This
is a great example of collaboration
between the FDA and state
attorneys general. By working
together, we can achieve excellent
results and double our
efforts to clean up misleading
advertising in the marketplace.
This significantly benefits the
public by ensuring that consumers
are not misled about
information relating to their
health.”
In addition to changes in
its advertising policies, Bayer
IRS offers quick tips to help taxpayers save money
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also must conduct a $20 million
corrective advertising program
to remedy misinformation from
the misleading YAZ advertisements.
Consumers wanting more
information on this case should
to http://state.tn.us/attorneygeneral/cases/bayer/bayer.htm.
Additionally, consumers are
encouraged to report other
consumer complaints by contacting
the Tennessee Division
of Consumer Affairs by calling
toll-free in Tennessee (800) 342-
8385 or going online to
www.tennessee.gov/consumer.
Source: Office of the Attorney
General ❖
IRS Web site is www.irs.gov.
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877-777-4778.
Source: IRS ❖
Ruling by U. S. Supreme Court may extend beyond ‘good faith’ cases
by Todd C. Berg, Esq.
The Daily Record Newswire
A new U.S. Supreme Court
exclusionary rule analysis may make
it more difficult for criminal defendants
to suppress evidence that was
unconstitutionally seized by the
police.
And, even though the court’s
announcement came in a ruling that
reads like a “good-faith exception”
opinion, criminal-law specialists say
the revamped analysis may apply to
more than just good-faith exception
cases.
In Herring v. U.S., the Supreme
Court refused to apply the exclusionary
rule to suppress drugs and a gun
seized from Bennie Dean Herring
after a police record-keeping error
caused the Coffee County, Ala.,
Sheriff’s Department to arrest and
search Herring based on a warrant
that had been recalled five months
earlier.
Writing in January for a five-justice
majority, Chief Justice John G.
Roberts Jr. said application of the
exclusionary rule was unwarranted
because the police’s violation of
Herring’s Fourth Amendment rights
to be free from unreasonable searches
and seizures was merely “the result of
isolated negligence attenuated from
the arrest.”
To trigger the exclusionary rule,
Roberts wrote, the police misconduct
must be deliberate, reckless, grossly
negligent or the result of “recurring or
systemic negligence.”
None of those descriptions
applied to the police misconduct in
Herring’s case, Roberts said.
When “police mistakes are the
result of negligence such as that
described here, rather than systemic
error or reckless disregard of constitutional
requirements,” he said, the
police’s violation of a defendant’s
constitutional rights is “not so objectively
culpable as to require exclusion.”
Before Herring, the Supreme
Court had not ruled out application
of the exclusionary rule as a sanction
for police negligence; nor had the
court required deliberate, reckless, or
grossly negligent police misconduct
or “recurring or systemic negligence”
as a prerequisite to evidence suppression.
Instead, objective reasonableness
was the standard. In a line of
cases that started with a 1984 decision,
U.S. v. Leon, the Supreme
Court recognized a good-faith exception
to the exclusionary rule for constitutional
violations that resulted
from the police’s “objectively reasonable
reliance” on warrants and
statutes that later turned out to be
invalid. The court reasoned that, if
the police had acted “objectively reasonably,”
then there was no misconduct
for evidence suppression to
deter.
Roberts didn’t refer to Herring
as a good-faith exception case, but he
did rely on the good-faith exception
line of cases in reaching his conclusion.
He also said the purpose of the
“judicially created” exclusionary rule
was to deter the police from committing
future Fourth Amendment violations.
The rule’s deterrent effect is
usually accomplished, Roberts said,
by suppressing evidence the police
seized unconstitutionally.
Justices Antonin Scalia,
Anthony M. Kennedy, Clarence
Thomas and Samuel A. Alito Jr.
joined Roberts’ majority opinion.
Justices John Paul Stevens, David
Souter and Stephen Breyer joined
Justice Ruth Bader Ginsburg’s dissent.
Assistant Wayne County
Prosecutor Timothy A. Baughman,
who persuaded the Michigan
Supreme Court to adopt the “goodfaith
exception” to the exclusionary
rule in People v. Goldston in 2005,
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said the Herring opinion appears to
give prosecutors an effective weapon
for defeating a defendant’s bid to
apply the exclusionary rule.
There “are certainly many situations
where the police may make a
‘reasonable’ error, [but it] could not be
characterized as deliberate, grossly
negligent or the result of systemic
negligence,” he said.
Professor David A. Moran, who
is one of the co-founders of the
University of Michigan Law School’s
Innocence Clinic and who has
argued and won before the U.S.
Supreme Court, said Herring could
make life easier for prosecutors.
And, consequently, he said, the
ruling could also make it more difficult
for criminal defendants who are
trying to use the exclusionary rule to
suppress unconstitutionally obtained
evidence.
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“A lot of police mistakes are the
result of negligence,” Moran said,
which means that, under Herring,
they wouldn’t trigger the exclusionary
rule.
Conversely, he said, the “number
of cases in which a deliberate violation
of constitutional rights can be
proved is pretty small.”
Moran said the Supreme
Court’s conclusion that police negligence
is insufficient to trigger the
exclusionary rule shows the court’s
“determined effort to very significantly
weaken the exclusionary rule.”
The majority is laying the
groundwork for “future expansion of
non-exclusion under the exclusionary
rule,” he said.
Although Herring was decided
in the context of a police record-
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