By GINA HOLLAND
Associated Press Writer
(AP) WASHINGTON
When sick children come to his counter for antibiotics, pharmacist Don Talley gives them a choice: banana or bubble gum.
Like most drug stores, Lakeside Pharmacy in Chattanooga, Tenn., mixes drugs to make them more tasty _ or sometimes a different strength _ for patients with special needs.
The Supreme Court ruled Monday that pharmacies have a free speech right to advertise the mixed products, striking down a ban aimed at the marketing of drugs that have not been approved by the Food and Drug Administration.
The court said that the government should find another way to regulate companies that engage in large-scale drug mixing, also known as compounding.
"If the First Amendment means anything, it means that regulating speech must be a last _ not first _ resort," Justice Sandra Day O'Connor wrote for the 5-4 court. "Yet here it seems to have been the first strategy the government thought to try."
The court's ruling is a victory for corner drug stores and large mail-order operations.
Justice Stephen Breyer, in a dissent, warned that the consequences could be fatal when pharmacists are doing more than adding flavors to drugs, then using ads to get patients interested in new mixed drugs.
Talley's drug store joined pharmacies in Colorado, Nevada, New Jersey, Texas and Wisconsin in challenging the 1997 advertising rules.
"It's not like we've got a bathtub and we're throwing snake eyes and bat wings in there," Talley said.
His typical mixing clients include women having trouble with the dosages of their hormone medicines or children who have been prescribed unpleasant-tasting liquid antibiotics, he said.
"You can ask them what flavor they like best. They'll go home wanting to take it," Talley said.
The ruling continued the Supreme 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.
The Bush administration argued the advertising limits are needed to protect the public. The court directed Congress to look at other options.
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. Physicians must authorize the mixings.
Pharmacy advocates told the Supreme Court that up to 10 percent of prescriptions are compounded. In the 1920s, pharmacists mixed about 80 percent of prescriptions.
Breyer, in the dissent, said the court "seriously undervalues the importance of the government's interest in protecting the health and safety of the American public."
"No one can deny that compounded drugs carry with them special risks," he wrote. Pharmacists are "combining different ingredients in new, untested ways."
Joining Breyer were Chief Justice William H. Rehnquist, John Paul Stevens and Ruth Bader Ginsburg.
States regulate pharmacists and their mixing practices. The 1997 federal law said pharmacies that advertise their products must also be regulated by the FDA. That means their mixed drugs would have to be approved for use.
The Supreme Court agreed with the 9th U.S. Circuit Court of Appeals that the advertising rules violate the pharmacists' First Amendment rights.
The case is Thompson v. Western States Medical Center, 01-344.
On the Net:
Supreme Court: http://www.supremecourtus.gov/
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