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WESTERN STATES MEDICAL CENTER v. SHALALA

No. 99-17424

238 F.3d 1090 (2001)

Western States Medical Center, a Nevada corporation; Women's International Pharmacy, a Wisconsin corporation; Health Pharmacy, a Wisconsin corporation; Apothecure, a Texas corporation; College Pharmacy, a Colorado corporation; Lakeside Pharmacy, a Tennessee corporation; Wedgewood Village Pharmacy, a New Jersey corporation, Plaintiffs-Appellees, v. Donna E. Shalala, in her official capacity as Secretary, United States Department of Health and Human Services; Jane E. Henney, M.D., in her official capacity as Commissioner, Defendants-Appellants.

United States Court of Appeals, Ninth Circuit.

Filed February 6, 2001

Attorney(s) appearing for the Case

Peter J. Smith, Civil Division, Department of Justice, Washington, D.C., for the defendants-appellants.

Michael A. Reiter, Duane, Morris & Heckscher, LLP, Chicago, Illinois, for the plaintiffs-appellees.

Michael S. Labson, Covington & Burling, Washington, D.C., for the amicus.

Before: Mary M. Schroeder, Chief Judge, Cynthia Holcomb Hall, and William A. Fletcher, Circuit Judges.

Argued and Submitted December 12, 2000 — San Francisco, California

CYNTHIA HOLCOMB HALL, Circuit Judge:

This appeal requires us to assess the constitutionality of two subsections of the Food and Drug Administration Modernization Act of 1997 ("FDAMA"), 21 U.S.C. § 353a. Subsections §§ 353a(a) and (c) of FDAMA prohibit drug providers from promoting or advertising particular compounded drugs. In return, the providers are exempted from the...

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