Supreme Court to Decide Constitutionality of Vermont Prescription Data-Mining Law

Published May 31, 2016

The U.S. Supreme Court heard arguments in a case that could have far-reaching impacts on data-mining practices for prescription drug manufacturers. The case was appealed to the Supreme Court after a U.S. Circuit Court ruled unconstitutional a Vermont law restricting the use of Internet data for marketing brand-name pharmaceuticals to doctors.

Supreme Court testimony in Sorrell v. IMS Health was conducted April 23. The appeal seeks to overturn last November’s Circuit Court decision upholding First Amendment protection of “detailing”—a practice of targeted marketing to doctors based on their histories of prescribing medications.

Vermont cited privacy concerns and the anticipation of reduced costs for the use of generic-brand prescriptions as two reasons for defending the bill. An aspect of the Vermont law determined unconstitutional by the Circuit Court is an opt-in requirement for doctors desiring information on brand-name medications.

‘Suppresses Free Speech’
A Supreme Court amicus brief filed by research and education institution TechFreedom argues the law suppresses free speech.

“I believe the Supreme Court will declare Vermont’s gratuitously paternalistic law unconstitutional,” wrote TechFreedom lead counsel Richard Ovelmen in the brief “The Court has repeatedly stated that the First Amendment prohibits a state from discriminating against the dissemination of truthful information because it fears that the speech will cause recipients to make decisions it does not like.”

TechFreedom President Berin Szoka aqreed, saying, “Several justices have called for the Court to abolish its distinction between commercial and noncommercial speech, to protect all speech equally. But so long as the Court maintains its double standard, it must apply the highest level of First Amendment scrutiny to regulations affecting both forms of speech. This case is a perfect example of how restrictions on the free flow of data can burden not just marketing but also research, medical care, journalism, and even sound policymaking.”

Mining Patients’ Data
The Vermont law was passed in 2007 to prevent data-mining of physicians’ history of writing patient prescriptions. Pharmaceutical companies declared the practice necessary for targeted and therefore more cost-efficient marketing to the medical profession.

Data miners purchased prescription information from pharmacies. Information collected included patients’ names, age, gender, and address. Also collected is information on the prescriptions’ dosage, quantity of medication, and date and location where the pharmaceuticals were purchased. Among the data-mining companies purchasing the information are plaintiffs IMS Health, Verispan, and Source Healthcare Analytics. The Pharmaceutical Research and Manufacturers of America is also a plaintiff.

The law was determined unconstitutional by the Circuit Court in this past November and immediately appealed by Vermont Attorney General William H. Sorrell. The U.S. Supreme Court agreed to hear the case in January.

‘Regulate Willy-Nilly’
Ovelmen said the law places another regulatory hurdle before the pharmaceutical industry while promising little to protect patient privacy.

“This case presents the Court with the perfect opportunity to reconcile free speech with controls on the free flow of data as part of speech justified in the name of privacy,” Ovelmen said. “[This is a] paternalistic law that does little to protect privacy while doing a great deal to suppress valuable speech—and not just commercial speech, but also clearly noncommercial speech about medical conditions and their treatment, as well as medical research, reporting, and commentary.”

Ovelmen added: “Our brief calls on the court to adopt a principled approach to dealing with conflicts between free speech and privacy that allows the government to enact laws tailored to genuine problems but requires that government look for less-restrictive alternatives where possible.”

Szoka says the calls for regulation to protect privacy should be weighed carefully. “Too many privacy organizations operate on the assumption that lawmakers should be able to regulate willy-nilly whenever they can invoke concerns about privacy,” he said.

Krystle Russin ([email protected]) writes from Dallas, Texas.

Internet Info:

William H. Sorrell, Attorney General of Vermont, et. al., v. IMS Health Inc., et. al., United States Supreme Court Docket, December 13, 2010:

“U.S. Supreme Court Amicus Brief: Sorrell v. IMS Health,” TechFreedom, April 23, 2011: