The Supreme Court ruled 6-3 Thursday that states may not prohibit the use of information about physician healthcare practices in the marketing of medicines. The decision strikes down a Vermont law prohibiting pharmacies from selling prescription data for marketing purposes. Justice Anthony Kennedy delivered the majority opinion in the case Sorrell v. IMS Health, while Justice Stephen Breyer was joined by Justices Ruth Bader Ginsburg and Elena Kagan in dissent.
"Speech in aid of pharmaceutical marketing...is a form of expression protected by the Free Speech Clause of the First Amendment," Kennedy says in court documents. "As a consequence, Vermont's statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard."
Furthermore, by adopting the law, "[t]he State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do," the majority held.
The Vermont law sprang from an effort by the Vermont Medical Society, as USA Today notes. The society's members urged the state Legislature to pass it after it became known that drug company sales reps were using prescription data-mining in their pitches to physicians.
In the dissent, Breyer writes that the Vermont statute meets the First Amendment standard the Supreme Court had previously applied when the government is looking to regulate commercial speech. "The prohibition against pharmaceutical firms using this prescriber identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs, and protect the privacy of prescribing physicians...At best the Court opens a Pandora's Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message," Breyer writes.
The ruling may not come as a surprise to some. Back in April, Vermont didn't make a very strong showing in front of the court when it attempted to defend its law. Chief Justice John Roberts, for example, accused the state of trying to control healthcare costs indirectly by "censoring" the information doctors can hear, rather than attacking the cost problem directly.
"Today's ruling is clear and unmistakable--these types of laws violate the Constitution and do nothing to improve healthcare, reduce costs or protect privacy as proponents had claimed," said Harvey Ashman, IMS Health senior VP and general counsel, said in a statement.
As a result of the decision, existing laws in Maine and New Hampshire could be declared unconstitutional or repealed. Thirty-five states and the Justice Department joined Vermont's defense of the law, as USA Today notes.