The Supreme Court this morning voted 6-3 to
strike down a Vermont statute that sought to impose significant
restrictions on pharmaceutical data mining activities. Justice
Kennedy's opinion in the closely-watched case of IMS v. Sorrell held that the Vermont
statute was an unconstitutional regulation of commercial
speech.
The first paragraph of Justice Kennedy's opinion provides a
brief summary of the posture of the case and of the Court's
decision:
Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont's statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.
We will be publishing a more extensive analysis shortly; watch this space for a link to it.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
