Supreme Court strikes down law restricting sale of prescription drug info

The US Supreme Court on Thursday struck down – as a violation of free speech – a statute that limited how drug companies could market their medications. The Vermont law blocked the use of prescription drug information in pharmaceutical company marketing campaigns designed to sell new drugs to doctors.

In a 6-to-3 vote, the high court said the law violated the First Amendment rights of drug manufacturers and data mining companies to speak about their products. Similar laws in Maine and New Hampshire are now likely in jeopardy.

State lawmakers in Vermont had justified the measure as a means to hold down health care costs and shield doctors from harassing marketing campaigns. But the high court rejected those justifications, saying the state’s restrictions on the use of the data specifically for marketing were “nothing more than a difference of opinion.”

“Vermont may be displeased that [marketers] who use prescriber-identifying information are effective in promoting brand-name drugs. The state can express that view,” Justice Anthony Kennedy said in the majority opinion. “But a state’s failure to persuade does not allow it to hamstring the opposition.”

Justice Kennedy said Vermont’s law was a content-based and speaker-based restriction on the availability and use of prescriber-identifying information. Under most cases such targeted censorship violates the First Amendment unless it is shown to be drawn to achieve a substantial governmental interest.

Kennedy said the Vermont law fails that test.

Under the Vermont law, many speakers could obtain and use the prescription drug information, Kennedy said. The only speakers barred from obtaining and using the data were drug companies or anyone seeking to use the information for marketing.

“Vermont’s statute could be compared to a law prohibiting trade magazines from purchasing or using ink,” Kennedy said.

In a dissent, Justice Stephen Breyer said the Vermont law restricted the use of data that was collected pursuant to government regulation of the prescription drug industry. The pharmaceutical companies want the data to create better sales messages, he said.

“In my view, this effect on expression is inextricably related to a lawful government effort to regulate a commercial enterprise,” Justice Breyer wrote. “The First Amendment does not require courts to apply a special ‘heightened’ standard of review when reviewing such an effort.”

He added: “The speech-related consequences here are indirect, incidental, and entirely commercial.”

Justices Ruth Bader Ginsburg and Elena Kagan joined Breyer’s dissent.

The Vermont law allowed physicians to decide for themselves whether their prescription information collected by pharmacies could be sold to data mining operations and to drug companies for marketing purposes. The records document a physician’s history of prescribing drugs to his or her patients.

The law did not restrict the use of the prescription information by researchers, law enforcement, or insurance companies.

1 | 2

Next