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Thompson v. Western States Medical Center
(U.S. Supreme Court)
FDA advertising prohibition is unconstitutional
The Supreme Court ruled 5 to 4 on 4/29/02 that a law allowing the FDA to prohibit drug advertising in return for exemptions from standard compounded-drug approval requirements violates the First Amendment. The Supreme Court has struggled for years to come up with a consistent rationale for deciding the constitutionality of restrictions on commercial speech. In this case, it found that the government had not shown that its prohibition on advertising was reasonable. The government has the burden to show that its regulation did not go too far to regulate commercial speech, and the Court found that the FDA could have banned large-scale production of compounded drugs without banning the advertisement of compounded drugs for sale on a more limited basis. This and other alternatives to the ban on advertising made the ban excessive.
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