Supreme Court hears case: Is Vermont restricting drug companies' speech?
Drug companies tell the Supreme Court that by barring access to doctors' drug prescribing records, Vermont is discriminating against the firms' protected commercial speech.
The US Supreme Court on Tuesday began examining whether Vermont legislators went too far when they enacted a 2007 law designed to shield drug-prescribing records from use by pharmaceutical companies seeking to sell new drugs to the state’s doctors.Skip to next paragraph
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Vermont Assistant Attorney General Bridget Asay defended the statute, telling the justices it was designed to allow doctors to decide for themselves whether prescription information retained by pharmacies could be sold and used by drug companies as a marketing tool.
This is no minor side-business. Drug companies spend an estimated $8 billion a year in such marketing. It includes studying doctor-specific prescription drug data obtained from pharmacies. They then use those findings to tailor sales pitches to persuade physicians to prescribe new, more expensive, drugs for their patients. The data purchased by the drug companies do not include the identities of patients.
The 2007 law allows the prescription drug information to continue to be distributed for research and insurance verification purposes. But it barred drug companies from using the data for marketing unless the prescribing doctor had agreed beforehand to permit the marketing.
Vermont lawmakers justified the measure in part as a means to keep health-care costs down. They found that by deploying marketing teams whose job is to replace cheaper generic drugs with the more expensive products, drug companies were driving up the cost of health care.
Discrimination by Vermont
A Washington lawyer representing the pharmaceutical industry, Thomas Goldstein, told the justices Tuesday that the measure amounted to discrimination by the State of Vermont against the constitutionally protected commercial speech of drug companies.
He said the companies were engaged in truthful and accurate speech about life-saving medicines.
He urged the high court to strike the statute down as a violation of free speech protections of the First Amendment.
“The way the First Amendment works in the marketplace of ideas is that both sides get to tell their story,” Mr. Goldstein said.