RESPONDENT:IMS Health Inc., et al.
LOCATION: US District Court, District of Vermont
DOCKET NO.: 10-779
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Second Circuit
CITATION: 564 US (2011)
GRANTED: Jan 07, 2011
ARGUED: Apr 26, 2011
DECIDED: Jun 23, 2011
Bridget C. Asay – for the petitioners
Edwin S. Kneedler – Deputy Solicitor General, Department of Justice, for the United States as amicus curiae, supporting the petitioners
Thomas C. Goldstein – for the respondents
Facts of the case
In 2007, the Vermont legislature passed a law that banned the sale, transmission or use of prescriber-identifiable data (”PI data”) for marketing or promoting a prescription drug without the consent of the prescriber. The law also prohibited the sale, license or exchange for value of PI data for marketing or promoting a prescription drug.
Three companies — IMS Health, Verispan and Source Healthcare Analytics, a unit of Dutch publisher Wolters Kluwer — that collect and sell such data and by a trade group for pharmaceutical manufacturers challenged the law. The U.S. Court of Appeals for the 2nd Circuit struck down the measure, holding that it violated the First Amendment because it restricts the speech rights of data miners without directly advancing legitimate state interests.
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?
Media for Sorrell v. IMS Health Inc.
Audio Transcription for Opinion Announcement – June 23, 2011 in Sorrell v. IMS Health Inc.
Anthony M. Kennedy:
The second case is the opinion for the Court in Sorrel versus IMS Health.
Companies that manufacture brand-name prescription drugs, higher marketers to promote their products.
Some of these marketers visit doctor’s offices to discuss the details and benefits of various pharmaceuticals.
So these direct marketers are called “detailers”.
Sales persons are often more effective when they are familiar with the preferences of their customers.
Pharmaceutical sales persons, including the so-called “detailers” are no exemption.
They use information regarding doctors past prescription decisions to concentrate their presentations on information that is most relevant to the individual doctor.
This information called “prescriber-identifying information” is collected by pharmacists.
Pharmacists sell this information to data miners.
These are firms that analyze the data and produce reports on individual prescription decisions.
Pharmaceutical manufacturers and the detailers then purchase the information from the data miners.
In 2007, Vermont enacted a law that place limits on the disclosure and use of prescriber-identifying information.
The measure prohibits pharmacists from selling the information and from disclosing it for marketing purposes.
The law also forbids pharmaceutical manufacturers from using the information for marketing.
Some Vermont data miners, and in association of pharmaceutical manufacturers, filed suit arguing that the law violated their First Amendment rights.
The United States District Court for the District of Vermont denied relief, but the Second Circuit reversed.
We now affirm the judgment of the Court of the Appeals for the Second Circuit.
Vermont’s law raises serious First Amendment concerns.
It imposes burdens based on the content of speech.
Under Vermont’s law, pharmacists may disclose prescriber-identifying information for many purposes including, for example, healthcare research.
But the law forbids pharmacists from selling or disclosing the information for marketing.
The law also imposes a restriction based on the identity of the speaker by preventing drug manufacturers from using the information for marketing.
Under the First Amendment, Vermont must justify these contents and speaker-based burdens on expression.
We conclude the State cannot do so.
Vermont suggest that its law protects the confidentiality of doctor’s prescription decisions, but the law allows for the widespread disclosure and user-prescriber-identifying information and so does not advance any interest in confidentiality.
Vermont also suggests that this law will prevent detailers from selling so many brand-name drugs.
In the States’ view, that outcome is desirable because brand-name drugs are expensive and pose special health risks.
The States’ argument, however, is contrary to basic First Amendment principles.
The Government may not strive to keep its citizens in the dark so that they will make decisions the State prefers.
The judgment of the Court of Appeals is affirmed.
Anthony M. Kennedy:
Justice Breyer has filed a dissenting opinion in which Justices Ginsburg and Kagan joined.