By Emily P. Walker, Washington Correspondent, MedPage Today, June 23, 2011
WASHINGTON -- Data on which doctors are prescribing which drugs is speech that is protected by the First Amendment, and pharmaceutical companies have every right to buy that information and use it to target their marketing efforts, the Supreme Court has ruled.
The nation's high court handed down a verdict Thursday in the Sorrell v. IMS Health case, striking down by a 6-3 vote a 2007 Vermont law that that bans the practice of data mining -- the sale and use of prescriber-identifiable information for marketing or promoting a drug, including drug detailing -- unless a physician specifically gives his or her permission to use the information.
Writing for the majority, Justice Anthony Kennedy said the goal of lowering the costs of medical services and protecting public health are laudable goals, but that the law doesn't advance those goals.
"Vermont seeks to achieve those objectives through the indirect means of restraining certain speech by certain speakers -- i.e., by diminishing detailers' ability to influence prescription decisions," he wrote. "But 'the fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech."
Justices John Roberts, Clarence Thomas, Sonia Sotomayor, Antonin Scalia, and Samuel Alito joined Kennedy in the majority opinion.
Dissenting were Justices Stephen Breyer, Elena Kagan, and Ruth Bader Ginsburg, who argued that the Vermont law affects expression "in one, and only one way" -- by depriving data-mining companies of data that "could help pharmaceutical companies create better sales messages." That is more linked to legal government effort to regulate a commercial enterprise, and not speech protected under the First Amendment, wrote Justice Breyer.