The United States Supreme Court granted certiorari to decide whether the First Amendment prohibits a law that requires the consent of drug prescribers before their non-public, identifying information is sold or marketed.

Vermont enacted a law banning the sale, transmission, or use of prescriber-identifiable data for marketing or promotion of a prescription drug unless the prescriber consents.

Data-mining companies typically purchase data about which drugs are prescribed by which doctors. While the information doesn’t include patient names, the companies can match the doctors’ names to specific drugs and then target them for individualized medication-related sales pitches.

IMS Health, a data-mining company, challenged the Vermont law, arguing that it violates its First Amendment rights because the purchase of the information is a constitutionally protected form of commercial speech.

The 2nd Circuit agreed and concluded that the statute was overbroad and that Vermont could have enacted a more limited restriction on speech.

The 2nd Circuit stated: “Because the statute restricts speech even with regard to prescriptions of breakthrough brand-name medications for which there are no generic alternatives, and because the state could pursue alternative routes that are directly targeted at encouraging the use of generic drugs the state wishes to promote, the state has not demonstrated that its interests in protecting public health and containing health care costs could not be as well served by a more limited restriction on speech.”

Similar “prescription privacy” laws have been passed in Maine and New Hampshire, and were upheld by the 1st Circuit when challenged by the data-mining companies.

The justices have not set the case for oral argument but should hear it later this term.

To read the 2nd Circuit’s decision in Sorrell v. IMS Health Inc., click here.

Why it matters: While the case is limited to Vermont law, a decision from the court could have an impact on privacy issues more generally. Although the information purchased by data-mining companies generally does not include patient names, privacy rights groups have objected to the practice on the grounds that sufficient information could be obtained to re-identify a person. And the arguments made by the data-mining companies – that limits on their ability to track purchase information limits their free speech rights – are similar to those made by behavioral tracking companies when faced with potential regulation or litigation.