Academic journal article Southern Law Journal

SORRELL V. IMS HEALTH INC.: SOWING MISCHIEF IN COMMERCIAL SPEECH PROTECTION+

Academic journal article Southern Law Journal

SORRELL V. IMS HEALTH INC.: SOWING MISCHIEF IN COMMERCIAL SPEECH PROTECTION+

Article excerpt

I. INTRODUCTION

In Sorrell v. IMS Health Inc.,1 the U.S. Supreme Court in a six to three decision ruled Vermont's Prescription Confidentiality Law ("PCL")2 violated the First Amendment protections accorded commercial speech.3 PCL prohibited the sale, disclosure and use of pharmacy records that disclosed the prescription practices of individual physicians without their consent. PCL disrupted the practice of "detailing" used by pharmaceutical companies to ascertain and report the prescription practices of individual doctors and thereby tailor their marketing efforts to increase sales of prescription drugs. Equipped with the detailing information, drug samples, and clinical study results, pharmaceutical sales representatives visit physician offices and pitch certain drugs for patient illnesses. Denied access to detailing information, the detailers and drug manufactures sued for injunctive and declaratory relief. Vermont argued its prohibition "safeguarded medical privacy and diminished the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the state."4 The U.S. Supreme Court disagreed and ruled PCL violated the detailers and drug manufacturers' First Amendment rights, "because of the imprecise fit between means and ends."5

Sorrell is the first venture of the U.S. Supreme Court into the First Amendment rights accorded commercial speech in several years and the first attempt by the Court to evaluate restrictions on commercial speech in the context of health care information.6 Indeed, because the Court's most recent attempts to resolve commercial speech rights involved compelled commercial speech, it is refreshing to return to a mainstream commercial speech case and to the comfortable and well-worn Central Hudson test.7 8

II. Vermont's Prescription Confidentiality Law

Vermont enacted PCL in 2007. PCL prohibits health insurers, pharmacies, and other similar entities from selling or licensing prescriber identified prescription records or disclosing prescriber identified prescription records for use in marketing drugs without the prescribes' consent, and bars pharmaceutical companies from using prescriber identified prescription records in marketing drugs without the prescriber's consent. In addition, PCL carves out a number of exceptions to its ban on prescriber identified prescription records: health care research, drug coverage formularies, patient treatment plans, and law enforcement requirements.9

Prior to PCL's enactment, pharmacies regularly sold prescriber identified prescription records, developed routinely in filling prescriptions, to "data miners"-companies that analyze prescriber identified prescription records to develop reports detailing the prescriber's practices in issuing prescriptions to patients-which in turn lease the reports to pharmaceutical manufactures. Pharmaceutical company sales representatives-''detailers"- use the reports to refine their marketing efforts to increase the sale of the pharmaceutical company's drugs. By better understanding the physician's prescription preferences, the detailer uses his office visit with the physician more effectively to recommend new or different drugs for patients, provide drug samples, and persuade the doctor on the advantages of the recommended drug. Because detailing is expensive, pharmaceutical companies and their detailers focus their attention on pitching higher-profit brand-name drugs protected by patents, rather than generic drugs.10

Three data mining companies, denied a lucrative source of income, and an association of pharmaceutical manufacturers of brand-name drugs, denied a valuable marketing tool, brought suit in Vermont contending PCL violated their First Amendment rights and requesting declaratory and injunctive relief.* 11 The federal district court denied relief. The U.S. Court of Appeals for the Second Circuit, deciding PCL violates the data mining and pharmaceutical manufacturing companies' First Amendment commercial speech rights without sufficient justification, reversed and remanded, and the * 12 U. …

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