Sorrell v. IMS Health, Inc.
Issues
Can a state prohibit the nonconsensual sale of doctors’ prescribing information contained in nonpublic prescription drug records, or is such a restriction an improper infringement on the free speech of pharmaceutical companies?
In 2007, Vermont passed Act 80, which prohibits prescription drug companies from obtaining patients’ personal information for marketing purposes without the prescribing physician’s consent. The pharmaceutical companies sued the state of Vermont, seeking an injunction prohibiting the enforcement of Act 80 on the grounds that it was an unconstitutional restriction on their right to commercial speech. Vermont argues that Act 80 does not regulate speech protected by the First Amendment, and that the law is related to Vermont’s interests of protecting medical privacy, controlling health care costs, and protecting public health. On the other hand, the pharmaceutical companies argue that Act 80 is unconstitutional because it discriminates against the speech of pharmaceutical manufacturers and it is not related to Vermont’s state interests. The Supreme Court’s decision will affect patients’ and physicians’ privacy, the marketing of prescription drugs, and the status of other laws protecting consumer privacy.
Questions as Framed for the Court by the Parties
Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs afoul of the First Amendment.
When filling prescriptions, Vermont pharmacies collect personal data about the patients and sell the data to data miningcompanies. See IMS Health, Inc. v. Sorrell, 630 F.3d 263, 267 (2d Cir. 2010).
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Additional Resources
· Wex: First Amendment
· Biotech Strategy Blog, Pieter Droppert: U.S. Supreme Court to Decide Whether Vermont Can Control the Use of Prescribing Data by IMS Health and Pharma Companies (Jan. 17, 2011)
· Daily Finance, Abigail Field: Is Data Mining Free Speech? The Supreme Court Agrees to Decide a Crucial Case (Jan. 11, 2011)