As of June 23, 2011, data miners and pharmaceutical manufacturers are rejoicing over a U.S. Supreme Court decision on Sorrel v. IMS Health, Inc. that declared a Vermont statute unconstitutionally restricted 1st Amendment rights. The Vermont statute targeted the practice of “detailing,” where a pharmaceutical representative explains and promotes a certain drug to a doctor in hopes that the doctor will be inclined to prescribe that drug in the future.
The statute lists rules regarding relevant issues such as the prohibition of sales, license or exchange of regulated records, including their use in marketing or promoting a prescription drug without the prescriber’s knowledge.
The Supreme Court specified that the statute at face value was a content-based burden on protected expression, which means the statute was subject to heightened judicial scrutiny. The State needed to show that the law will advance substantial government interest and that the law is created to further that interest. The statute does not favor “speech with a particular content” and, more specifically, does not favor specific speakers, mainly pharmaceutical manufacturers. Based on these rules, detailers are not allowed to obtain prescriber-identifying information, even if the information can be purchased by others with various purposes and opinions. Detailers also cannot use the information for marketing purposes, even though other speakers could use the information.
The State’s reasons for why the statute was necessary:
- In order to protect medical privacy, such as honoring the doctor-patient relationship, keeping physician confidentiality, and avoiding harassment; and
- In order to accomplish the goals set out by the policy objectives, including improving public health and decreasing healthcare costs.
The fact that the Vermont law explicitly targets the speech’s content and the speaker’s identity weighed heavily on the Court’s decision. Although physicians have a vested interest in privatizing their prescription decisions, the Court ruled the statute did not advance that interest because it only offered “limited degree of privacy…on terms favorable to the speech the State prefers.” The Court also acknowledged that the State might not appreciate the detailers’ success in furthering their brand name drugs. However, the Court declared that the State “may not burden the speech of others in order to tilt public debate in a preferred direction.” Because of this, the Court held that the statute was unconstitutional.
Although pharmaceutical manufacturers and detailers may seem like the primary victors in this battle, physicians still have the opportunity to withhold their prescribing data from marketers through a special program. Physicians must register for the Physician Data Restriction Program through the American Medical Association.
Beahm & Green Professional Negligence Attorneys 