By: Helen Oscislawski, Principal at Attorneys at Oscislawski LLC.
Last Friday, the United States Supreme Court struck down the Vermont Prescription Confidentiality Law allowing prescriber-identifying information to be sold and disclosed by pharmacies and pharmaceutical manufacturers for marketing purposes. You can retrieve a copy of the U.S. Supreme Court's full opinion here. A fantastic history of the case as well as various Amicus Briefs filed for and against Sorrell vs. IMS are posted on Vermont Office of Attorney General's website. The case was argued on April 26, 2011, and you can listen to the oral arguments in front of the Justices here.
Many have been anxiously awaiting the Court's decision, which promised to have a profound affect either way on how deidentified information is collected and used for various purposes, including healthcare research and quality improvement, as well as for marketing. Justice Kennedy, writing for the 6-3 majority, held that the Vermont law was an unconstitutional content-based restriction on First-Amendment protected expression. The majority asserted that speech restraint of this kind must be subject to strict judicial scrutiny. Kennedy concludes that the Vermont law fails this test because, in seeking to advance its goal of lowering health care costs and promoting public health, it restricts “certain expression by certain speakers.”
The dissenting justices contend that these messages are commercial speech, and that government regulation of commercial speech has not been subjected to the heightened judicial scrutiny employed by the majority. In this light, Justice Breyer concludes that the statute permissibly regulates commercial activity. The Court’s dissent also raised concerns over long-term precedential trouble created by the majority’s decision. Justice Breyer states that, “at best, the court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message… [and] at worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision-making where ordinary economic regulation is at issue.”
For some, the Court's decision is a huge disappointment, but others will undoubtedly welcome the Court's decision as the correct outcome. One argument pointed out in favor of striking down the Vermont law is that:
“the behavior of physicians and other health care professionals is routinely scrutinized by federal and state regulators, accrediting organizations, licensing boards, and health care plans, among others. A broadly recognized privacy interest in prescriber-identifiable data could have implications for multiple important issues, including quality measurement and public reporting, as well as comparative effectiveness research, which are critical to reform of our health care system. If the Court were to agree that prescriber records need to be protected like corporate ‘trade secrets’ or that there is no role for outside review of physician decision making, important reform activities that depend on access to and use of prescriber identified data could be impaired or prohibited.” See Center for Democracy and Technology
Clearly, the U.S. Supreme Court agreed.
