382
Breyer, J., dissenting
(same); La. Stat. Ann. §§ 37:1164(5) and (25) (West 2000) (same); Miss. Code Ann. §§ 73-21-73(c) and (s) (Lexis 1973- 2000) (same); Mont. Code Ann. § 37-7-101(7) (1997) (same); N. H. Rev. Stat. Ann. §§ 318-1(III) and (VIII) (Supp. 2001) (same); N. M. Stat. Ann. §§ 61-11-2(C) and (Q) (2001) (same); Ohio Rev. Code Ann. § 3715.01(14) (West Supp. 2002) (same); Okla. Stat., Tit. 59, §§ 353.1(20) and (26) (Supp. 2002) (same); S. C. Code Ann. §§ 40-43-30(7) and (29) (2001) (same); Tenn. Code Ann. §§ 63-10-404(4) and (18) (1997) (same); Tex. Occ. Code Ann. §§ 551.003(9) and (23) (2002 Pamphlet) (same); W. Va. Code §§ 30-5-1b(c) and (o) (1966-1998) (same). These policies and statutory provisions reflect the view that individualized consideration is more likely present, and convenience alone is more likely absent, when demand for a compounding prescription originates with a doctor, not an advertisement. The restrictions try to assure that demand is generated doctor-to-patient-to-pharmacist, not pharmacist-to-advertisement-to-patient-to-doctor. And they do so in order to diminish the likelihood that those who do not genuinely need untested compounded drugs will not receive them.
There is considerable evidence that the relevant means— the advertising restrictions—directly advance this statutory objective. No one denies that the FDA's complex testing system for new drugs—a system that typically relies upon double-blind or other scientific studies—is more likely to find, and to assess, small safety risks than are physicians or pharmacists relying upon impressions and anecdotes. See supra, at 378.
Nor can anyone deny that compounded drugs carry with them special risks. After all, compounding is not necessarily a matter of changing a drug's flavor, cf. ante, at 377, but rather it is a matter of combining different ingredients in new, untested ways, say, adding a pain medication to an antihistamine to counteract allergies or increasing the ratio of approved ingredients in a salve to help the body absorb it
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