On June 23rd, the Supreme Court issued an opinion in the case Sorrell v. IMS Health in which the Justices voted 6-3 that a Vermont law restricting the ability of pharmaceutical companies to analyze reports on prescriber behavior and use that information to market branded drugs to doctors violated the First Amendment.
The Vermont prescription drug cost containment provisions (commonly known as the Prescription Confidentiality Law) sought to restrict the ability of firms known as “detailers” to collect, analyze, and forward to pharmaceutical manufacturers “prescriber identifying information” conveying prescription information so that the pharma companies could refine their marketing of branded drugs to prescribing doctors. The Vermont law provided that such prescriber information could not be sold by pharmacies and similar entities for marketing purposes without the consent of the prescribing physician. While some had initially described this as potentially a prescriber privacy case, it is fundamentally a First Amendment free-speech question.
Justice Kennedy wrote for the majority and found that “on its face, the law enacts a content- and speaker-based restriction on the sale, disclosure, and use of prescriber-identifying information.” While the Vermont statute did not prohibit the collection and use of prescriber information for other purposes, the Court held that the law was not a mere commercial regulation and that the circumstances warranted heightened scrutiny. While the Vermont law professed to protect medical privacy, including physician confidentiality, the Court determined that “assuming … physicians have an interest in keeping their prescription decisions confidential, §4631(d) is not drawn to serve that interest.”
The Kennedy opinion stated that while the Vermont policy goal of reducing the costs of medical services may be proper, the statute impermissibly sought to achieve this by diminishing a “detailer’s” ability to influence prescription decisions. Furthermore, Vermont had not contended that the law would reduce the potential for false or misleading speech, which may have had a better chance under First Amendment precedent.