Supreme Court nixes Vt. prescription data mining restrictions

By a vote of six to three, the U.S. Supreme Court today struck down a 2007 Vermont law that restricts the sale, disclosure and use of pharmacy records revealing prescribing practices of individual doctors.

With certain exceptions, the law prohibits prescription information from being sold, disclosed by pharmacies for marketing purposes or used for marketing by pharmaceutical manufacturers. In the Supreme Court case, Sorrell et al v. IMS Health Inc. et al, Vermont argued that the prohibitions in the law safeguarded medical privacy and diminished the likelihood that marketing would lead to prescription decisions that weren’t in the best interests of patients or the state.

The questions, according to the Court, were whether the statute must be tested by heightened judicial scrutiny and, if so, whether the state could justify the law. The First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with a message it conveys, stated Justice Anthony Kennedy, who write the majority opinion.

The state argued that heightened judicial scrutiny is unwarranted because its law is a commercial regulation. But the Courth ruled that speech in the 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," Kennedy wrote.

“The 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,” Kennedy concluded.

Justice Stephen Breyer, writing for the dissent, countered that the Vermont statute deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, which could help pharmaceutical companies create better sales messages.

“In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special ‘heightened’ standard of review when reviewing such an effort,” Breyer wrote.

The statute meets the First Amendment standard the Court previously applied when the government seeks to regulate commercial speech, he added. “For any or all of these reasons, the Court should uphold the statute as constitutional.”