Sorrell v. IMS: Oral Argument Analysis

The Court heard oral argument today (transcript here) in Sorrell v. IMS which raises the constitutionality  of a Vermont statute prohibiting pharmacies from selling physician aggregated prescription information to pharmaceutical companies for use of that information in physician marketing in a process known as detailing.

Arguing for the state of Vermont, Bridget Asay had an effective opening:

Under State and Federal law, doctors write prescriptions for their patients to allow them access to drugs that the government deems too dangerous for unrestricted sale. Vermont's law allow doctors to decide whether this information that they're compelled to provide to pharmacies may be used in marketing that is directed at them.

Drug companies would certainly like to have this information for marketing, but they have no First Amendment right to demand it, just as they have no right to demand access to the doctor's tax returns, his patient files, or to their competitors' business.

However, Ms. Asay was soon pressed. For example, Justice Scalia commented that the State of Vermont was "making it more difficult" for pharmaceutical companies and their representatives "to speak by restricting access to information that would enable their speech to be most effective."   Ms. Asay's replied, that indeed,

their speech would be more effective if they had access to patient information, if they had access to their competitors' trade secrets. There's certainly other information available that they would like to use in marketing, but is not available to them by law, and it -- it's our position that in the same way they do not have a right to demand access to information about the doctor's prescribing practices without his consent.

Again the Justices pressed her on the First Amendment claims and she was kept over time in order to further respond.  Edwin Kneedler, arguing for The Solicitor General's Office supporting Vermont, articulated several analogies, including to the Driver's Privacy Protection Act and sought to distinguish the "general advertising cases" under the commercial speech doctrine. However, as Kneedler was explaining that it was not "radio or television advertising," but "one-on-one advertising," Justice Kennedy interrupted to state, "Well, that's because the pharmaceutical company deems this to be the most efficient."

Thomas Goldstein, of Scotusblog fame, attempted to take command, starting by instructing the Justices: "You will want to have available you to the red brief of IMS Health, Incorporated," and later stating, "This information -- I would direct you to the amicus brief -- you don't have to pull it out right now, but for later. The brief of the National Association of Chain Drugstores . . ."  

Goldstein rejected the State's interest in protecting the privacy of the physicians, echoing what Justice Scalia had observed earlier - - - that doctors can simply refuse to meet with drug company representatives - - - but with a personal inflection: "the doctors do get to say: I don't want you to come visit me. They do that all the time. My dad's a doctor; he doesn't visit with detailers."   Goldstein continued by portraying the pharmaceutical companies both as victims of discrimination and as clearly on the side of the public good.  For example,

the way the First Amendment works in the marketplace of ideas that so upsets Vermont is that both sides get to tell their story, right? The thing that is supposed to be biased here is that the drug companies have too much money. That is not a basis for restricting speech.

And later,

This is information about lifesaving medications where the detailer goes in and talks about double blind scientific studies that are responsible for the development of drugs that have caused 40 percent of the increase in the lifespan of the American public.

Justice Breyer later interjected, "It used to be true there was something called a regulated industry."  His phrasing of the statement in the past tense seemed to acknowledge the present ascendancy of corporate speech.

RR