Detailing Commercial Speech: What Pharmaceutical Marketing Reveals about Bans on Commercial Speech
Wolf, Andrew J., The William and Mary Bill of Rights Journal
Pharmacies maintain a "potpourri" of records about the prescriptions people bring to be filled, including the drugs, dosages, and prescribers.1 Eventually, this information ends up in the hands of pharmaceutical companies, who use the data to market or detail new medications to physicians based on their prescribing history. Because the data are packaged by prescribing physicians, 2 the data are commonly referred to as prescriber-identifying information. New Hampshire, Vermont, and Maine responded to this practice by passing legislation to ban the use of prescriber-identifying information for marketing or commercial purposes.3 Because pharma-ceutical companies are the largest purchasers of prescriber-identifying information and data processing companies' largest source of income, two data processing com-panies immediately challenged the legislation as a violation of the First Amendment.4 The data processing companies argued that the legislation impermissibly limited then-ability to disseminate information.5 The Supreme Court agreed, but did so under the framework of viewpoint discrimination, casting aside the commercial speech analysis on which the lower courts had based their rulings.6
While the outcome of Sorrell v. IMS Health7 is but another example of the Court's effort to erode the commercial speech doctrine, Sorrell pushes the commercial speech doctrine ever closer to that used to analyze noncommercial speech. Noncommercial speech currently enjoys greater judicial scrutiny than commercial speech, 8 but the Court and commentators have questioned the foundations for that division. While some argue that commercial speech is less valuable than political speech, and there-fore undeserving of strict scrutiny, 9 others question the commercial-noncommercial divide and go so far as to advocate eliminating the commercial speech doctrine en-tirely. 10 I propose that commercial speech restrictions fit neatly into two classes: restrictions which limit the time, place, or manner of expression, and holistic bans on a class of speech. I argue that the Court should evaluate bans under the rubric of strict scrutiny, while reserving the Court's intermediate review under Central Hudson Gas & Electric Corp. v. Public Service Commission11 for less restrictive time, place, or manner restrictions. Evaluating commercial speech along these lines has the ad-vantage of greater consistency in the doctrine, while balancing the values that under-lie the First Amendment and commercially motivated speech.
Part I explores the parallel paths of commercial speech and the content-based analysis that is central to noncommercial speech. Part II examines the legislation enacted in New Hampshire, Vermont, and Maine, as well as the subsequent split between the First and Second Circuits. It then analyzes Sorrell, emphasizing the ways in which the Supreme Court has demonstrated its desire to alter the commer-cial speech doctrine. Part III then develops the reasons why commercial speech deserves greater protection in the context of outright bans. By examining the poli-cies that support a separate commercial speech doctrine and the policies that support consolidation, I propose a middle ground that balances the values underlying an evolving area of Constitutional Law. Finally, Part IV demonstrates the application of this framework to pharmaceutical detailing.
I. Modern Commercial and Noncommercial Speech Doctrines
A. Content-Based Speech Restrictions
Within the Court's First Amendment doctrine, commercial speech and noncom-mercial speech form two separate tracks under which a court may evaluate a law or regulation that restricts speech. 12 Within the noncommercial track of the First Amendment, the road again splits into content-based restrictions and content-neutral restrictions. 13 Content-neutral restrictions are imposed without reference to the content of the speech. 14 In other words, the speech limit at issue is content-neutral if the government's justification for regulating the speech is not based on what is being said. …