Facts of the Case
In 2007, Vermont enacted the Prescription Confidentiality Law. The aforementioned statute prohibited pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. Where before, it has been the business routine of pharmacies to sell the prescriber-identifying information that they receive to data miners which would then lease the information to pharmaceutical manufacturers, the aforementioned law prohibited pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. Furthermore, the said entities were prohibited from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. Subsequently, upon the passage of the law, respondents, Vermont data miners and an association of brand-name drug manufacturers sought declaratory and injunctive relief against Vermont state officials. According to the respondents, the statute violated their rights under the
Does a Vermont state statute banning the sale, transmission or use of prescriber-identifiable data, absent prescriber consent, unconstitutionally restrict the free speech rights of pharmaceutical research companies, manufacturers and others to use that data?
Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Anthony Kennedy. Vermont’s statute, which imposes content-and speaker-based burdens on protected expression, is subject to heightened judicial scrutiny, Kennedy wrote. Meanwhile, Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan. The First Amendment does not require courts to apply a special ‘heightened’ standard of review when reviewing such an effort, Breyer wrote. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech.
- Citation: 564 US _ (2011)
- Granted: Jan 7, 2011
- Argued: Apr 26, 2011
- Decided Jun 23, 2011