On January 7, 2010, the U.S. Supreme Court agreed to review a Court of Appeals decision striking down Vermont’s prescription confidentiality law.  The State of Vermont had petitioned the Supreme Court to review the case on December 13, 2010, after the Second Circuit ruled that the law constituted an impermissible restriction on commercial speech under the First Amendment. 

The Vermont law at issue requires doctors’ consent before their identifying information in prescription records—i.e., prescriber-identifiable data—can be used or sold for marketing prescription drugs.

The Court of Appeals for the Second Circuit had ruled that the law is an impermissible restriction on commercial speech under the First Amendment, reversing and remanding the district court.  This ruling created a split with the First Circuit, which had previously upheld prescription confidentiality laws in Maine and New Hampshire.

The key legal issue that the Supreme Court will confront, as framed by the Vermont Attorney General, is whether “laws that restrict access to or commercial use of non-public drug prescriber information implicate First Amendment rights and, if so, what type of First Amendment review applies.”  Oral arguments are expected to be scheduled for the current term, with a decision potentially announced by the end of the term in June.

The Supreme Court’s ruling on this issue is likely to have significant implications for the pharmaceutical industry.  Pharmaceutical companies use prescriber-identifiable data for many different purposes, such as to focus their marketing efforts, to impart safety and risk information to prescribers of particular drugs, and to conduct research.  A ruling that Vermont’s law is constitutional could pave the way for other States to enact similar (or potentially more onerous) laws restricting the commercial use of prescriber-identifiable data.