Today, in a 6-3 decision, the U.S. Supreme Court struck down a Vermont law restricting the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors.  In so holding, the Supreme Court found that speech in aid of pharmaceutical marketing is a form of expression protected by the First Amendment.   The decision is consistent with the concerns about the statute evident from the Court’s questions at oral argument, which were discussed in a previous post.

At issue was the Vermont Prescription Confidentiality Law, which regulates the ability of pharmacies to sell information about physician prescription practices — known as “prescriber-identifying information.”  The Vermont law prohibited pharmacies and other entities from selling prescriber-identifying information for marketing purposes or allowing such information to be used for marketing purposes without a prescriber’s consent.  The law was challenged by a group of three data miners and an association of pharmaceutical manufacturers. 

The Supreme Court characterized the use of prescriber-identifying information as “speech in aid of pharmaceutical marketing” and concluded that it is a form of expression protected by the First Amendment, the regulation of which is subject to heightened scrutiny.  It rejected arguments that the law was a commercial regulation that placed only an incidental burden on expression, finding instead that “Vermont’s law imposes a burden based on the content of speech and the identity of the speaker.”  According to the Supreme Court, the law had the effect of preventing only pharmaceutical marketers, but not other speakers, from communicating with physicians in an effective and informative manner.   Because the law prohibited use of the information for only one purpose, the Court observed that while “[i]t may be assumed that . . . physicians have an interest in keeping their prescription decisions confidential,” the challenged law “is not drawn to serve that interest.”     

Justice Kennedy authored the Supreme Court’s opinion in this case, Sorrell v. IMS Health, Inc.  Justice Breyer authored a dissent, which was joined by Justices Ginsburg and Kagan.