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U.S. Supreme Court

Ban on Sale of Prescription Drug Info Violates First Amendment, Supreme Court Rules

Posted Jun 23, 2011 10:02 AM CDT
By Debra Cassens Weiss

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A law that bars pharmacies from selling prescription information to drug marketers violates the constitutional right to free speech, the U.S. Supreme Court has held.

In his majority opinion (PDF), Justice Anthony M. Kennedy said the Vermont law fails under a heightened scrutiny test.

Drugmakers typically use the prescription information, which includes the patients’ age and sex but not their names, when their sales representatives call on doctors. Under the Vermont law, drug companies cannot obtain the information unless doctors consent.

The Vermont law on its face burdens disfavored content-based speech—marketing—by disfavored speakers—pharmaceutical manufacturers, Kennedy wrote. Heightened judicial scrutiny is warranted when government regulates speech, including commercial speech, because it disagrees with the message, Kennedy said.

"The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure," Kennedy wrote. "In considering how to protect those interests, however, the state cannot engage in content-based discrimination to advance its own side of a debate."

The court’s newest justices, Elena Kagan and Sonia Sotomayor, parted ways in the case. Sotomayor joined the majority of six justices and Kagan joined the dissent.

Kennedy said the drug information ban could be compared to a law barring trade magazines from purchasing or using ink. Both laws would require heightened scrutiny because of the speaker- and content-based burden on protected expression.

"Salespersons can be more effective when they know the background and purchasing preferences of their clientele, and pharmaceutical salespersons are no exception," Kennedy wrote. "The state has burdened a form of protected expression that it found too persuasive."

A dissent by Justice Stephen G. Breyer said the court should have have used a heightened scrutiny standard. "In any event, the statute meets the First Amendment standard this court has previously applied when the government seeks to regulate commercial speech," he wrote. He was joined by Kagan and Justice Ruth Bader Ginsburg.

Senate Judiciary Chairman Patrick Leahy issued a statement calling the decision "another example of this court using the First Amendment as a tool to bolster the rights of big business at the expense of individual Americans. I am reminded of the court’s decision in Citizens United, where this court overturned a century of campaign finance law to give corporations more power in our elections."

The case is Sorrell v. IMS Health.

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