Protecting protected speech: First Amendment taxonomy and the Food and Drug Administration's regulation of 'enduring materials'

摘要

The U.S. Supreme Court's decision in Nike, Inc. v. Kasky was widely anticipated, if universally disappointing. Nike promised, many thought, to answer one of the vexing questions of First Amendment commercial speech jurisprudence; that is, the question of its subject matter. Just which speech is commercial speech may be considerably less clear than the protections such speech is due. The answer--of no small interest to food and drug law--was not forthcoming. Per curiatn, the Court dismissed the writ in Nike as improvidently granted. Nike followed in the wake of another commercial speech case of no small interest to food and drug law--Thompson v. Western States Medical Center. There, over the Food and Drug Administration's (FDA's) objections, the Court held that certain provisions of the Food and Drug Administration Modernization Act (FDAMA)4 restricting the advertising and promotion of compounded drugs were violative of the First Amendment, as was FDA enforcement of those provisions.