Federal legislation banning the advertising of specially mixed drugs has been overturned by the US Supreme Court, which voted five to four that the veto violated the First Amendment.

At issue is the practice of drug compounding, whereby pharmacists combine medications to produce a mixture tailored to a patient’s special needs. The federal government argued that such concoctions – to all intents and purposes new drugs – are not subject to the strict testing imposed on other medications, and consequently banned ads promoting them.

Writing on behalf of the five judges who voted to uphold a lower court’s ruling against the law, Justice Sandra Day O’Connor agreed that there were worries over untested drug compounding, but argued that methods of control other than an unconstitutional ad ban should be employed.

“If the First Amendment means anything, it means that regulating speech must be a last – not first – resort,” she declared. “Yet here it seems to have been the first strategy the government thought to try.”

However, dissenting against the decision was Justice Stephen Brayer, who argued that the government banned the promotion only of certain drug combinations, not the practice of compounding itself. He believes the ruling is a first: “This court has not previously held that commercial advertising restrictions automatically violate the First Amendment,” he wrote.

Ad groups also noted this precedent, though with considerably more enthusiasm. “This is a great day for advertising and a great day for the First Amendment,” declared Adonis Hoffman, senior vp of the American Association of Advertising Agencies. “The court has clearly affirmed the First Amendment rights for commercial speech.”

Data sourced from: AdAge.com; additional content by WARC staff