Comments on: Pharmaceuticals Won’t Speak for Themselves http://www.showmedaily.org/2009/12/pharmaceuticals-wont-speak.html Advancing liberty with responsibility by promoting market solutions for Missouri public policy Thu, 24 May 2012 12:24:42 -0400 http://wordpress.org/?v=2.8.4 hourly 1 By: Dave Roland http://www.showmedaily.org/2009/12/pharmaceuticals-wont-speak.html/comment-page-1#comment-4363 Dave Roland Wed, 09 Dec 2009 22:54:33 +0000 http://www.showmedaily.org/?p=9861#comment-4363 Advertising restrictions would have to be pretty carefully tailored if they were going to survive judicial scrutiny. The government will have to demonstrate both an important state interest in restricting the advertising AND that the restrictions are "no more extensive than is necessary to serve that interest." Applying this standard in Thompson v. Western States Medical Center (2002), the U.S. Supreme Court struck down a governmental regulation that banned pharmacies from advertising "compounded drugs" that were not required to go through the FDA's standard approval process. If the government is concerned about people buying unproven drugs, they have the option of prohibiting people from buying unproven drugs. If they are concerned about companies making false or misleading claims about those drugs, they can prohibit companies from making false or misleading claims. The government cannot, however, decide that companies are not allowed to provide citizens with information about a product that is (or may soon be) on the market. Advertising restrictions would have to be pretty carefully tailored if they were going to survive judicial scrutiny. The government will have to demonstrate both an important state interest in restricting the advertising AND that the restrictions are “no more extensive than is necessary to serve that interest.” Applying this standard in Thompson v. Western States Medical Center (2002), the U.S. Supreme Court struck down a governmental regulation that banned pharmacies from advertising “compounded drugs” that were not required to go through the FDA’s standard approval process.

If the government is concerned about people buying unproven drugs, they have the option of prohibiting people from buying unproven drugs. If they are concerned about companies making false or misleading claims about those drugs, they can prohibit companies from making false or misleading claims. The government cannot, however, decide that companies are not allowed to provide citizens with information about a product that is (or may soon be) on the market.

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