Court Rules on Pharmacy Ad Rules

Monday, April 29th 2002, 12:00 am
By: News On 6

WASHINGTON (AP) _ The Supreme Court struck down government advertising rules for pharmacies that mix specialty medicines for children and other patients with special needs.

The court ruled 5-4 that pharmacies that alter prescription medicines to suit individual patients can promote their products without having to get federal approval of the mixtures.

The decision was a defeat for the Bush administration, which argued the 5-year-old advertising law was needed to protect the public.

Justice Sandra Day O'Connor wrote the decision, which continued the court's trend of protecting free speech rights in the business arena. In recent years justices have struck down limits on tobacco advertising near schools and a ban on casino gambling ads. O'Connor also wrote the controlling opinion in the tobacco ads case.

In this case, she said the government had multiple other options to regulate companies that engage in drug mixing, also known as compounding.

``If the First Amendment means anything, it means that regulating speech must be a last _ not first _ resort,'' O'Connor wrote. ``Yet here it seems to have been the first strategy the government thought to try.''

In a dissent, Justice Stephen Breyer said the court ``seriously undervalues the importance of the government's interest in protecting the health and safety of the American public.''

Joining Breyer were Chief Justice William H. Rehnquist, John Paul Stevens, and Ruth Bader Ginsburg.

The 1997 law separated pharmacies that compound drugs into two categories. Those that advertise their services are regulated by the Food and Drug Administration. Those that don't advertise are not regulated. The law was challenged by pharmacies in Colorado, Nevada, New Jersey, Tennessee, Texas and Wisconsin.

In compounding, a pharmacist or doctor can remove an ingredient that causes allergic reactions, put a medicine in a form easier to consume or make other changes to fit a patient's needs.

The practice is widespread, among corner drug stores and larger pharmacies. The federal law was intended to curb potential abuses by the larger pharmacies or mail-order businesses.

The 9th U.S. Circuit Court of Appeals in San Francisco said the advertising rules violate the pharmacists' First Amendment rights. The Supreme Court upheld the decision.

The Bush administration had argued that some pharmacists were making major changes to drugs and that the compounds had not been tested.

The case is Thompson v. Western States Medical Center, 01-344.