Supreme Court: Vt. Prescription Drug Data-Mining Restrictions Violate First Amendment

Today the Supreme Court issued its ruling in Sorrell v. IMS Health Inc., which presented a First Amendment challenge to Vermont’s statute restricting data-mining of doctors’ prescription records.  Justice Kennedy, writing for a six Justice majority, began the opinion with this summary:  

Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.

Justice Breyer dissented in an opinion joined by Ginsburg and Kagan.

JFB