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.
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“If the message is accurate,” he added, “the drug companies can go make their pitch. Vermont can come along and make the opposite pitch. So can insurance companies.”Skip to next paragraph
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“But what you can't do is have a rule that says one side is going to have a much harder time getting to their audience,” Goldstein said.
Several justices appeared sympathetic to the argument.
“You want to lower your health-care costs not by direct regulation but by … censoring what they can hear to make sure they don’t have full information [about new drugs],” Chief Justice John Roberts told Vermont’s lawyer, Ms. Asay.
“The statute does not limit the information doctors receive,” Asay responded. Drug companies may still contact the physician and deliver a sales pitch, just not the targeted pitch from the analyzed prescription data.
'Restricting access to information'
“You are making it more difficult for them to speak by restricting access to information that would enable their speech to be most effective,” Justice Antonin Scalia said.
Asay said the drug makers have no right to demand a doctor’s prescription information without first obtaining that doctor’s consent.
“But you are making a judgment about whether or not their speech will be more effective or not,” Chief Justice Roberts said. “Don’t you think they’re the ones who are entitled to make that judgment?”
Deputy Solicitor General Edwin Kneedler argued in support of the Vermont law. He said the measure protects important interests in physicians maintaining autonomy over data reflecting his or her history of prescribing medications.
'Put the physician ... on equal footing'
“Prior to the time this statute was enacted, the pharmacy had complete control of the disposition of that information,” he said. “What this statute does is put the physician, the prescriber, on equal footing with respect to the pharmacy.”
He said the Vermont law is similar to consumer efforts to block receipt of unwanted junk mail and telemarketing calls. But the Vermont law is more limited, he said.
The case is Sorrell v. IMS Health Inc. (10-779). A decision is expected by the end of June.