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Sorrell v. IMS Health Inc.

Supreme Court of the United States

April 26, 2011, Argued; June 23, 2011, Decided

No. 10-779

Opinion

 [*557]  Justice Kennedy delivered the opinion of the Court.

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  [****9] may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its [***551]  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.

Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” This often involves  [*558]  a scheduled visit to a doctor's office to persuade the doctor to prescribe a particular pharmaceutical. Detailers bring drug samples as well as medical studies that explain the “details” and potential advantages of various prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and purchasing preferences of their clientele, and pharmaceutical salespersons  [****10] are no exception. Knowledge of a physician's prescription practices--called “prescriber-identifying information”--enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a [**2660]  particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug's patent expires, less expensive bioequivalent generic alternatives are manufactured and sold.

Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when processing prescriptions. See 21 U.S.C. § 353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their marketing tactics and increase sales.

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564 U.S. 552 *; 131 S. Ct. 2653 **; 180 L. Ed. 2d 544 ***; 2011 U.S. LEXIS 4794 ****; 79 U.S.L.W. 4591; 67 A.L.R.6th 755; 22 Fla. L. Weekly Fed. S 1246

WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT, et al., Petitioners v. IMS HEALTH INC. et al.

Subsequent History: Motion granted by, in part, Motion denied by, in part, Costs and fees proceeding at IMS Health Inc. v. Sorrell, 2012 U.S. Dist. LEXIS 99105 (D. Vt., July 17, 2012)

Prior History:  [****1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

IMS Health Inc. v. Sorrell, 630 F.3d 263, 2010 U.S. App. LEXIS 24053 (2d Cir. Vt., 2010)

Disposition: Affirmed.

CORE TERMS

prescriber-identifying, First Amendment, marketing, regulation, pharmacies, pharmaceutical, prescriber, drugs, commercial speech, messages, content-based, detailing, privacy, manufacturers, prescription, effective, purposes, burdens, restrictions, brand-name, disfavored, patients, disclosure, heightened, sales, pharmaceutical manufacturer, prescription drug, prohibitions, decisions, promoting

Constitutional Law, Freedom of Speech, Commercial Speech, General Overview, Healthcare Law, Fundamental Freedoms, Scope, Judicial & Legislative Restraints, Evidence, Inferences & Presumptions, Presumptions, Advertising