This post was also written by Joe Metro.
States regulate doctors in issuing prescriptions. The States keep databases that show which doctors prescribe what medicines, for what purposes, and when. That information is valuable to anyone who would seek to locate doctors with certain prescription-writing habits. For example, a database user might seek out doctors to suggest that those doctors try a different drug or combination of drugs as a more effective treatment. Some doctors objected to being contacted with such suggestions, especially by commercial drug manufacturers. As a consequence, several States passed laws banning the purchase and use of prescription-writing records for purposes of commercial outreach to health care professionals. Vermont’s law was challenged by, et al., IMS Health, a major provider of information services to the health care industry. The United States Court of Appeals for the Second Circuit, at IMS Health’s urging, struck down Vermont’s law as imposing an unconstitutional impairment on commercial free speech. Today, in a 6-3 decision, the United States Supreme Court agreed, adopting a position that Reed Smith helped advance.
Justice Kennedy, writing for the majority in Sorrell v. IMS Health, stated that: “Speech in aid of pharmaceutical marketing…is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.” The Court noted that Vermont’s law would allow academics to use of prescriber-identified information to promote generic drug use. However, the same law would block the makers of brand-name drugs from reaching out to doctors in a comparable, high-touch informational campaign. Thus, “the law on its face burdens disfavored speech by disfavored speakers.” Lacking a compelling reason for this viewpoint-based discrimination, Vermont’s law could not stand.
The dissent, authored by Justice Breyer, called for a more relaxed standard of review to be applied to the challenged State regulations. The dissent argues that the speech in question is commercial; that limits are routinely put on marketing speech especially in connection with health and safety; and moreover, that the States should be afforded great leeway in deciding for what purposes these State-created databases of prescription information are sold and used.
Reed Smith participated in this case to further explain to the Court the public health benefits arising from targeted commercial use of prescription-writing data. Reed Smith’s team drafted and filed an amicus brief supporting IMS Health’s position. Reed Smith submitted that brief to the Court on behalf of two former United States Secretaries of Health and Human Services (Dr. Louis W. Sullivan and Governor Tommy Thompson) as well as the Healthcare Leadership Council. The decision of the Court today is fully consistent with the positions advanced by these public health experts. Of note, that Court specifically cited to and endorsed the public health benefits of a free flow of information about treatment options. As the Court found: “A consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. That reality has great relevance in the fields of medicine and public health, where information can save lives.”