Sorrell v. IMS Health Inc. - Oral Argument - April 26, 2011

Sorrell v. IMS Health Inc.

Media for Sorrell v. IMS Health Inc.

Audio Transcription for Opinion Announcement - June 23, 2011 in Sorrell v. IMS Health Inc.

Audio Transcription for Oral Argument - April 26, 2011 in Sorrell v. IMS Health Inc.

John G. Roberts, Jr.:

We will hear argument first this morning -- this morning in Case 10-779, William Sorrell, Attorney General of Vermont, v. IMS Health Incorporated.

Ms. Asay.

Bridget C. Asay:

Mr. Chief Justice, and may it please the Court:

Under State and Federal law, doctors write prescriptions for their patients to allow them access to drugs that the government deems too dangerous for unrestricted sale.

Vermont's law allow doctors to decide whether this information that they're compelled to provide to pharmacies may be used in marketing that is directed at them.

Drug companies would certainly like to have this information for marketing, but they have no First Amendment right to demand it, just as they have no right to demand access to the doctor's tax returns, his patient files, or to their competitors' business records.

Vermont's law does not regulate the content of the marketing pitches and the advertising that drug companies provide about their products or their competitors' products.

It regulates access to this information that's created in a highly regulated regime of prescription drugs and in the context of the doctor-patient relationship.

John G. Roberts, Jr.:

The purpose -- the purpose is to prevent sales representatives from contacting particular physicians, right?

Bridget C. Asay:

I disagree, Your Honor.

The purpose of the statute is to let doctors decide whether sales representatives will have access to this inside information about what they have been prescribing to their patients.

And what -- what the record shows is that what drug companies do is track and monitor doctors very closely to watch when they switch drugs, to watch the trends by which they -- doctors prescribe, by gender, by age.

And all that information is used to target and to direct the marketing projects--

Antonin Scalia:

But they could use it for other purposes, right?

Bridget C. Asay:

--The pharmaceutical manufacturers?

Antonin Scalia:

Right.

Bridget C. Asay:

Under this statute they may use it for some limited purposes for clinical trials.

Antonin Scalia:

So what the Chief Justice suggested is right, that the purpose is to stop them from using it in order to market their drugs?

Bridget C. Asay:

The purpose is to allow doctors to decide whether the--

Antonin Scalia:

That's right.

Bridget C. Asay:

--the information should be available.

Antonin Scalia:

Well, that's right, but that -- that is an impediment to their using it for the marketing of drugs.

You're -- you're placing that impediment on it.

Isn't that the obvious purpose of it?

I mean, it doesn't necessarily make it bad, but -- but let's not quibble over what the purpose is.

Bridget C. Asay:

As with any information that the -- that might inform a marketing campaign, not having the information may be -- make their marketing less effective or make it different.

Antonin Scalia:

That's the purpose.

That's the purpose of it, to prevent them from using this information to market their drugs.

Bridget C. Asay:

Again, Your Honor, the purpose is to allow doctors to make the decision, and doctors may want to allow its use or not allow its use.

But the law--