[5] This precedent was overturned in Bigelow v. Virginia (1975), in which the Supreme Court held that advertisements are acts of speech that qualify for First Amendment protection.
[6] The commercial speech doctrine, outlining acceptable and unacceptable government restrictions on ads based on topic or product category, was formulated by the Supreme Court in the 1976 Virginia State Pharmacy Board ruling.
[8] In upholding the regulation, the Supreme Court said, "We are...clear that the Constitution imposes...no restraint on government as respects purely commercial advertising".
[9] The Court has set forth a framework under Central Hudson for analyzing commercial speech under intermediate scrutiny:At the outset, we must determine whether the expression is protected by the First Amendment.
[9] Justice Antonin Scalia expressed "discomfort with the Central Hudson test, which seem[ed to him] to have nothing more than policy intuition to support it".
[14] In Germany, the courts adopted a strict approach to advertising and commercial speech due to its emphasis on ensuring competition.
The ECHR noted that the prohibition fell within the 'margin of appreciation' that national authorities are permitted under Article 10, §2, which allows for certain formalities, conditions, restrictions, or penalties to be imposed on the exercise of freedom of expression.