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Restricting the use of prescription data infringes free speech

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Restricting the sale, disclosure and use of prescription drug data for marketing purposes runs headlong into the First Amendment, the…

Restricting the sale, disclosure and use of prescription drug data for marketing purposes runs headlong into the First Amendment, the U.S. Supreme Court ruled today.

“Speech in aid of pharmaceutical marketing . . . is a form of expression protected by the Free Speech Clause of the First Amendment,” Justice Anthony Kennedy said for the Court in Sorrell v. IMS Health Inc. When a state law, like the Vermont statute at issue, restricts the access or use of data by disfavored groups or for disfavored purposes, the restrictions are subject to heightened constitutional scrutiny and are likely unconstitutional, Kennedy said.

Pharmacies commonly retain prescription data for legal and business purposes, the Court’s opinion said. The data can be highly valuable to pharmaceutical companies, particularly when it includes information about individual doctors’ prescription practices. The companies use the information to tailor their marketing of products to doctors, known as “detailing.” Drug companies often obtain this information through data mining companies, who purchase and aggregate the data from pharmacies.

The Vermont statute at issue restricted the purposes for which prescription data that identified individual doctors' prescription practices could be sold, disclosed or used. In particular, it placed limits on disclosing or using this information for marketing purposes, while at the same time allowing the use of the data for non-commercial purposes such as academic research. The Vermont statute also authorized a program to counter detailing efforts through a separate informational campaigns to doctors.

Data mining and pharmaceutical companies challenged Vermont’s restrictions, leading to the Supreme Court’s consolidated ruling today. By a vote of 6-3, the Court decided the state’s law impermissibly targeted for restriction the speech of data mining and pharmaceutical companies.

“Both on its face and in its practical operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker,” Kennedy said. Those facts made the law subject to heightened constitutional scrutiny, raising the bar for the state to justify the restrictions. “The First Amendment requires heightened scrutiny whenever the government creates ‘a regulation of speech because of disagreement with the message it conveys,’” according to the opinion.

The reasons for the law advanced by the state — to protect medical privacy and to promote the public policy goals of lowering medical costs and advancing public health — did not justify the restrictions, the Court ruled. The law could not truly be said to protect medical privacy because it allowed the release of the purportedly confidential information for a variety of other purposes, just not the disfavored one. Nor was the purported concern about the effect on the physician-patient relationship grounds for limiting the protected speech rights of others.

Moreover, while lowering health care costs and promoting public health may be “proper” goals, the state could not permissibly achieve those goals by silencing the voices of those with different opinions, the Court said. “[A] State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction,” Kennedy said.

While emphasizing that economically motivated speech was protected by the First Amendment, the Court’s opinion did not directly address whether commercial speech was subject to a lower standard of review than political speech. The Court’s opinion said the result in this case would be the same under either standard.

The Reporters Committee for Freedom of the Press joined a friend-of-the-court brief submitted on behalf of news media organizations in support of the respondents in the case. The news media’s brief emphasized the importance of access to computerized data for reporting purposes.