The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed to carefully achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

The Central Hudson Court explained that the careful design requirement on such limitations "recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." Id. at 2351. The Court also pointed out that speech restrictions that posed no danger to the asserted state interest or merely "conditional and remote eventualities" could not justify suppressive regulation. Id. at 2351, 2353. The Court also noted that regulations completely suppressing commercial speech were reviewed with "special care" and that "in recent years this Court has not approved a blanket ban on commercial speech unless the expression itself was flawed in some way, either because it was deceptive or related to unlawful activity. Id. at 2351, n. 9.

The narrow tailoring requirement of the Central Hudson Test was further elaborated upon by the Supreme Court in Bd. of Trustees of State Univ. of N.Y. v. Fox (1989), 109 S. Ct. 3028. In Fox , the Court stated that the regulation must not "burden substantially more speech than is necessary to further the government's legitimate interest." Id. at 3034. The Court then explained that:

What our decisions require is a "fit" between the legislature's ends and the means chosen to accomplish those ends - a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is "in proportion to the interest served," that employs not necessarily the least restrictive means but,... a means narrowly tailored to achieve the desired objective.

We reject the contention that the test we have described is overly permissive. It is far different, of course, from the "rational basis" test used for Fourteenth Amendment equal protection analysis... Here we require the government goal to be substantial, and the cost to be carefully calculated. Moreover, since the state bears the burden of justifying its restrictions, it must affirmatively establish the reasonable fit we require (emphasis provided). Id. at 3035.

Thus, while the protection of the public health is concededly a substantial interest, the State bears the burden of demonstrating affirmatively that chelation therapy is inefficacious or unsafe if it intends to burden commercial speech on the matter. It is respectively posited that the State cannot succeed in this endeavor, given the safe and tremendously successful experience physicians have had in utilizing this therapy with their patients.

Just as with the doctrine of the right of privacy, the underlying rationale with the commercial speech doctrine is simply a recognition that reasonable people are quite capable of deciding for themselves what is best for them. In responding to the Plaintiff's arguments regarding the need to protect the public, the Supreme Court in Virginia Pharmacy Board v. Virginia Citizen's Consumer Counsel, Inc., 96 S.Ct, 1817, 1829 (1976) summarily stated:

There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them . . . It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.

Conclusion

As is apparent from the foregoing, it is ACAM's position that a more than sufficient quantum of evidence exists to support the use of EDTA chelation therapy as a safe and efficacious treatment modality and, thus, licensed physicians utilizing this therapy should not be impeded in their use of it with their patients.

Under the common law, the State may not deny an individual the right to exercise a reasonable choice in medical care, nor the correlative right of licensed practitioners to provide such care, and the United States Constitution precludes unfair burdening of choice in treatment decisions. Under both the Doctrine of the Right of Privacy and the Commercial Speech Doctrine, substantial deference is given to the individual to make important decisions regarding his own body. As recently reiterated by the Supreme Court, "At the heart of [protected] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood v. Casey, supra, 112 S.Ct. at 2807.

ACAM's position as set forth herein is adopted not only for the medical profession, but more importantly, for the individual patients who can benefit from this treatment.

*ACAM gratefully acknowledges the special contribution of its counsel, Gregory D. Seeley, Esq., of Seeley, Savidge & Ausem in developing this position paper.

Appendix

Table of Legal Authorities

Abrams v. United States, 250 U.S. 616 (1919)

Andrews v. Ballard, 498 F. Supp. 1038
(S.D. Tex. 1980)

Bates v. State Bar of Arizona, 433 US 350, 97
S. Ct. 2691 (1977)

Bd. of Trustees of State Univ. of N.Y. v.
Fox, 109 S. Ct. 3028 (1989)

Central Hudson Gas v. Public Service Com'n of
N.Y., 447 US 557, 100 S. Ct. 2343 (1980)

Cincinnati v. Discovery Network, Inc., 113 S.Ct.
1505, 123 L.Ed. 2d 99 (1993)

Clair v. Centre Comm. Hosp., 317 Pa. Super. 25, 463 A.2nd 1065 (1983)

Dent v. West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed. 623 (1889)

Discovery Network, Inc. v. City of Cincinnati, 946 F. 2d 464 (6th Cir. 1991)

Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973)

Fitzgerald v. Manning, 679 F. 2d 341 (4th Cir. 1982)

Griswold v. Connecticut, 381 U.S. 479 (1965)

Olmsted v. United States, 277 U.S. 438 (1928)

Planned Parenthood v. Casey, 112 S.Ct. 2791 (1992)

Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 388 (1969)

Roe v. Wade, 410 U.S. 113 (1973)

Rogers v. State Board of Medical Examiners, 371 So. 2d 1037 (Fla. App. 1979)

Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914)

State Board of Medical Examiners of Florida v. Rogers, 387 So. 2nd 937 (Fla. 1980)

Stuart v. Wilson, 211 F. Supp. 700 (D.C. 1963)

Union Pacific Ry. v. Botsford, 141 U.S. 250 (1891)

United States v. Evers, 643 F.2d 1043 (5th Cir. 1981)

Vest v. Cobb, 76 S.E. 2d 885 (W. Va.)

Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976);
96 S. Ct. 1817, 1825

¹²Id, at pp. 107-226.