Prescriber Drug Information is Speech Entitled to First Amendment Protection

In July 2009, acting as counsel of record and co-counsel with New England Legal Foundation (NELF), Atlantic Legal filed an amicus brief in the United States Court of Appeals for the Second Circuit on behalf of NELF in IMS Health v. Sorrell. The case arises out of a law adopted by Vermont that restricts the transfer of physician- identifiable data (no information revealing the identity of the patient is collected or disclosed), which, we argued, violates the First Amendment. The data is collected from pharmacies by companies such as IMS Health, and disseminated primarily to pharmaceutical companies to enable them to focus their marketing activities based on prescriber-identifiable information and for healthcare research purposes, and to make those marketing and research efforts more efficient and less costly, thus potentially reducing the price of prescription drugs. The challenged Prescription Restraint Law bars pharmacies, insurers, and other entities from transferring prescriber-identifiable information to be used for marketing purposes.

The United States District Court for the District of Vermont correctly concluded that the prescriber-identifiable information at issue in this case is disclosure of certain truthful information and therefore the Vermont law constitutes a restriction on speech protected by the First Amendment, but incorrectly held that as commercial speech such information and its disclosure is entitled to less First Amendment protection than non-commercial speech, and that the Vermont law was therefore not unconstitutional.

The amicus brief argues that the speech at issue in this case is not commercial for First Amendment purposes under applicable Supreme Court precedent because it does not propose a commercial transaction (i.e., advertise a product or service) and that even though the information itself is sold by IMS and may ultimately be used by pharmaceutical companies in the marketing of their products, the end use by a third party of this information is irrelevant in determining whether the banned transfer proposed a commercial transaction. Because the speech in question is not commercial speech, the Vermont law must be subjected to strict scrutiny, rather than the intermediate scrutiny applied by the district court.

To view the brief, click here.