ANOTHER VICTORY FOR LIBERTY - SUPREMES GIVE YOU THE RIGHT TO ADVERTISE UNTESTED DRUGS

Justice Breyer may be the most exciting Supreme Court justice - in fact his decisions often read like technical manuals. However, if there is one thing that Breyer knows, it is regulation. I had the "fortune" of reading his opus on regulation in my Government Processes class at Georgetown. I'm glad he spared anyone else the need to write such a book. That being said, Breyer brings his detailed understanding of regulation to point out the folly of the Supreme Court's latest expansion of commercial speech rights, an expansion I find dubious in general, and particularly problematic in this case.

In a 5-4 decision, the Supreme Court struck down a provision of the Food and Drug Admnistration Modernization Act (FDAMA) that restricted the advertising of untested compound drugs. Compund drugs are prescription drugs created by pharmacists who combine, alter or mix ingrediants to create a medication tailored to the needs of an individual patient. Because of their individualized nature, the scale of compound drugs is such that it makes going through the FDA's testing process prohibitively expensive. The FDAMA crafted a regulatory compromise; compound drugs would be excempt from the FDA's testing requirements, provided that the pharmacist adhered to certain conditions. One of these conditions was a prohibition on the advertising of the compounding of any particular drug. Pharmacists were free to advertise their general services as compounders.

Commercial speech doctrine is a bit complicated, but at the present it purports to have a "more flexible" test than political speech. Thus, government is able to restrict commerical speech that "contains lawful activity" and is "not misleading" where (1) the asserted government interest is substantial, and (2) the regulation must directly advance the governmental interest and (3) not be more extensive that is neccessary to serve the interest. As this case shows, this test is not exactly a clear guideline. Most problematically, the third prong has the same defect that causes strict scrutiny to become in fact fatal. It allows the court to second-guess administrative and legislative decisions by proposing hypothethical alternative, less restrictive solutions. Just as almost any action can be tailored more narrowly, so too can a restriction on speech be rethought of as less extensive.

Neither side in this case denies that the government's interest - protecting the public's health through the regulation of drugs, is substantial. Both agree, that the regulation directly advanes the objective of confining the sale of untested, compounded drugs to where they are medically needed. As expected, the majority falss back on the third prong, throwing out hypothetical alternatives to the advertising restriction. As Breyer's dissent notes, these policy alternatives do not address all of the regulatory concerns behind the provision. Breyer punches holes in each one of the majority's proposed alternatives.

Quite simply, complex regulatory decisions are ill-suited to the judicial branch. Only in the rarest of circumstances, should the judiciary substitute its policy preferences for those of the democratic branches in such matters. Free speech is naturally an area where judicial intervention is required. However, all speech is not equal. As the court itself has said restrictions on commerical speech do not often repress individual self-expression; they rarely interfere with the functioning of the democratic political proceses; and they often refelct a democratically determined governmental decision to regulate a commerical venture in order to protect, the consumer, public health, individual safety or the environment. All of those important public goods are in jeaopardy if the court continues down the foolish path of treating marketing campaigns as public discourse.