Cite as: 535 U. S. 357 (2002)
Syllabus
concern rests on the questionable assumption that doctors would prescribe unnecessary medications and amounts to a fear that people would make bad decisions if given truthful information, a notion that the Court rejected as a justification for an advertising ban in, e. g., Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 770. Pp. 373-376.
(d) If the Government's failure to justify its decision to regulate speech were not enough to convince the Court that the FDAMA's advertising provisions were unconstitutional, the amount of beneficial speech prohibited by the FDAMA would be. Forbidding the advertisement of compounded drugs would prevent pharmacists with no interest in mass-producing medications, but who serve clienteles with special medical needs, from telling the doctors treating those clients about the alternative drugs available through compounding. For example, a pharmacist serving a children's hospital where many patients are unable to swallow pills would be prevented from telling the children's doctors about a new development in compounding that allowed a drug that was previously available only in pill form to be administered another way. The fact that the FDAMA would prohibit such seemingly useful speech even though doing so does not appear to directly further any asserted governmental objective confirms that the prohibition is unconstitutional. Pp. 376-377.
238 F. 3d 1090, affirmed.
O'Connor, J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 377. Breyer, J., filed a dissenting opinion, in which Rehnquist, C. J., and Stevens and Ginsburg, JJ., joined, post, p. 378.
Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Matthew D. Roberts, Douglas N. Letter, Alex M. Azar II, Daniel E. Troy, and Patricia J. Kaeding.
Howard M. Hoffmann argued the cause and filed a brief for respondents.*
*Briefs of amici curiae urging affirmance were filed for the International Academy of Compounding Pharmacists by Alan E. Untereiner and Arnon D. Siegel; for the National Community Pharmacists Association by Kenneth S. Geller and John M. Rector; and for Julian M. Whitaker, M.D., et al. by Jonathan W. Emord and Claudia A. Lewis-Eng.
Michael H. McConihe filed a brief for the American Pharmaceutical Association as amicus curiae.
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