The Supreme Court recently remanded a case challenging a Maine data mining law on First Amendment grounds (IMS Health Inc. v. Schneider). The Supreme Court sent the case back to the Court of Appeals in light of the Supreme Court’s recent decision affirming a similar Vermont law unconstitutional (IMS Health Inc. v. Sorrell). Both laws prohibited pharmacies from selling prescriber-identifying information for marketing purposes. The Maine law, which is written with an opt-in provision, allows prescribers to affirmatively choose to prohibit pharmacies from selling or using their information for marketing purposes. The Vermont law deemed unconstitutional imposed similar restrictions, but was written as an opt-out whereby prescribers would have to affirmatively opt-out to allow pharmacies to share or sell prescribing information. In light of the Supreme Court’s decision in Sorrell, the Court of Appeals will be asked to determine whether the two statutes are similar enough that Sorrell would dictate that the Maine law be found unconstitutional.

TIP:   While it appears states may be taking steps to curtail pharmaceutical marketing, it appears the Supreme Court has taken the position that states may be taking restrictions too far and there is, in fact, still room for pharmaceutical marketing. States may take steps in the future to narrow their restrictions to avoid the broad prohibitions the Supreme Court has determined are unconstitutional. We will continue to monitor the situation to see if a trend emerges.