The U.S. Supreme Court heard oral argument last week in Sorrell v. IMS Health, Inc.  As described in our earlier post, the case involves a constitutional challenge to a Vermont law prohibiting the use or sale of doctors’ identifying information in prescription records—i.e., prescriber-identifiable data—without the doctor’s express consent.

The key legal issue, as framed by the Vermont Attorney General in the cert petition, 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.”  The Court of Appeals for the Second Circuit had ruled that the law is an impermissible restriction on commercial speech under the First Amendment.

At the oral argument on April 26, the assistant state attorney general characterized the law as meant to protect a privacy interest of physicians.  She asserted that physicians should be allowed to choose whether information they’re required to give to pharmacies may be used in marketing directed toward them.  The lawyer for IMS Health countered that the State may not restrict the speech of one type of stakeholder to favor another.

Press reports of the oral argument indicate that, like the Second Circuit, a majority of the Supreme Court seemed to be troubled by the law.  The Court seemed to be leaning toward a determination that the commercial use of the data is protected commercial speech.  The concept that the law served to protect a privacy interest of the physicians seemed to gain very little traction, since it was noted that the same information that Vermont seeks to prevent the branded pharmaceutical industry from using is generally available for use by other stakeholders in the health care industry.  A number of the justices also reportedly expressed concern with the way Vermont sought to lower health care costs through the law—not by direct regulation, but by restricting the flow of information to doctors.

A decision in the case is expected by June.