The Supreme Court today overturned a federal law that barred pharmacists from advertising drugs mixed for patients with special needs, providing the ad industry perhaps the strongest protection ever from government restrictions.
The court in a 5-4 vote upholding a lower court decision striking down the law said the ban was unconstitutional because it sought to block commercial speech protected by the First Amendment.
What the government sought to ban was the advertising of drug compounding, a practice in which pharmacists mix medications, essentially creating a new drug, to meet patients special needs. Pharmacists in several Western states said the ad curbs prevented them from communicating the products' beneficial effects.
The government argued that the compounded drugs didn't meet the same rigorous testing that other major medications did.
Justice Sandra Day O'Connor, writing for the majority, said that while the government had valid worries about whether the untested compounded drugs would become standard substitutes, there were other means to limit their use besides an ad ban. Justice O'Connor was joined by Justices Anthony Scalia, Anthony Kennedy, David Souter and Clarence Thomas.
"If the First Amendment means anything, it means that regulating speech must be a last -- not first -- resort," Justice O'Connor said. "Yet here it seems to have been the first strategy the government thought to try."
Justice Stephen Breyer said the law doesn't bar pharmacists from advertising that they compound drugs, only barring them from advertising specific combinations.
"I believe that the court seriously undervalues the importance of the government's interest in protecting the health and safety of the American public," Justice Breyer wrote.
"This court has not previously held that commercial advertising restrictions automatically violate the First Amendment," he wrote.
Ad groups today praised the decision.
"This is a great day for advertising and a great day for the First Amendment," said Adonis Hoffman, senior vice president and counsel for the American Association of Advertising Agencies. "The court has clearly affirmed the First Amendment rights for commercial speech."
John Kamp, an advertising lawyer in Washington, said the decision could serve as a warning to politicians seeking to limit direct-to-consumer pharmaceutical advertising.
"The days are over when the [Food and Drug Administration] or even Congress will get away with marketing restrictions when there are alternative ways of protecting the public health," he said.
Ira Teinowitz, AdAge.com. April 29, 2002
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