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The Potential Far-Reaching Effects of The Supreme Court’s Application of Free Speech Principles to Drug Marketing Efforts
Posted in Litigation

The United States Supreme Court recently struck down a Vermont law that barred pharmacies and others with access to prescription records from selling the prescriber behavior data to entities that would use the information for marketing purposes. Justice Kennedy, writing for a 6-3 majority in Sorrell v. IMS Health Inc., found that speech to further pharmaceutical marketing is a form of expression protected by the First Amendment. The Vermont statute, as a consequence, was subject to heightened judicial scrutiny. The Court found that the Vermont law enacted content- and speaker-based restrictions on the sale and use of prescriber-identifying information, but only barred sales that related to marketing efforts. So long as the purchasers do not engage in marketing (i.e., academics), many could obtain and use the information under the Vermont law.

According to the Court, the “law on its face burdens disfavored speech by disfavored speakers. Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content.” The Court observed that while the Vermont law “may offer a limited degree of privacy” protection, it was “only on terms favorable to the speech the State prefers.” Justice Kennedy wrote, “The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do.”

Writing for the minority, Justice Breyer, opined that the Vermont law adversely affected expression in only one way — by depriving pharmaceutical and data mining companies of data that may help improve future sales messages. The minority observed “this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise.” According to Justice Breyer, “At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message.”

The Court’s First Amendment reasoning may be employed in other contexts to challenge commercial regulations. For instance, this reasoning may be used to challenge Food and Drug Administration required warnings on cigarette packaging, disclosures required with the sales of securities, or the FDA’s ban on the advertisement of drugs for off-label purposes, to name a few.

For more information about these issues, contact the Litigation Practice Group at Bingham Greenebaum Doll.

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