HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Thursday, June 23, 2011

Turning a Shield into a Sword

Thirty-five years ago, in Virginia State Board of Pharmacy, the Supreme Court recognized its "commercial speech" doctrine so it could protect the interests of consumers in paying lower prices for their prescription drugs. Yesterday, in Sorrell v. IMS Health, the Court invoked the commercial speech doctrine on behalf of pharmaceutical company marketing strategies that drive up the cost of prescription drugs.

The decision is troubling for a number of reasons. First, it allows pharmacies to sell information from patients' prescriptions so drug companies can use that information in ways that are harmful to patient interests. But any information gleaned from patients by health care providers should be used only for the good of the patients. Second, the Court sacrificed patient interests in favor of corporate speech interests even though there were absolutely no restrictions on what drug companies can say to physicians when marketing their drugs. Third, the Court raised its level of review for commercial speech from "intermediate scrutiny" to the more rigorous level of scrutiny it employs for non-commercial speech.

While in some sections, the Court wrote an opinion that could have broad implications for regulations of other corporate speech, there also were parts that suggested a narrower reading. For example, the Court viewed the Vermont statute as targeting the use of prescription data by drug company marketers while letting just about anyone else use the same data. The Court suggested that a statute would past muster if it broadly protected prescription information with narrow exceptions for use (e.g., a statute more like HIPAA). Still, it's difficult to see how the FDA's ban on off-label promotion of drugs by pharmaceutical companies can survive judicial scrutiny after this decision.


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