First Amendment supporters can breath a sigh of relief. The U.S. Supreme Court has struck down a Vermont law that impinged upon the free speech rights of pharmaceutical companies.
If derisive laughing and/or forehead slapping lasts more than four hours, contact your doctor.
(When the
Pharmaceutical Research and Manufacturers of America spent at least $101.2 million on lobbying during the health-care overhaul debate in 2009, the term “free speech” needed defibrillating.)
Vermont’s 2007 law blocked the sale of doctors’ prescription data to drug companies. The high court ruled 6-3 that the law interfered with the pharmaceutical industry’s right to market its products.
Thirty-five states, along with the Justice Department, joined Vermont’s defense of the law, as did privacy groups and medical organizations. Maine and New Hampshire have similar laws on the books.
IMS Health Inc. and other data collectors challenged the law. The companies gather information from pharmacies on which medicines doctors are prescribing and how often. Pharmaceutical companies buy the information, and use it to refine marketing pitches and measure which salespeople are the most effective, the Wall Street Journal reported.
Patient names aren’t included, but the physician’s name, address and strength of drugs prescribed are included to allow pharmaceutical companies to track the illnesses physicians treat, and their prescribing patterns, USA Today reported. Drug makers use the information to assemble a focused sales campaign to convince doctors to advise patients to use newer, more expensive drugs rather than less expensive generic medications, the Christian Science Monitor reported.
IMS Health has a different view. It says the information is “essential to improved patient care and safety.”
Writing for the majority, Justice Anthony Kennedy said that because the information is available to others, such as researchers, law enforcement and insurance companies, keeping the data from drug makers and other marketers is an unfair restriction.
Writing in dissent, Justice Stephen Breyer argued that “The speech-related consequences here are indirect, incidental and entirely commercial.” He stressed that the information covered by Vermont’s law was commercial in nature and exists because of government regulation of pharmacy records.
Breyer also warned that the court may have opened “a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices.”
Justice Kennedy said “Vermont’s statute could be compared to a law prohibiting trade magazines from purchasing or using ink.”
Not quite. The law didn’t prohibit drug companies from purchasing ingredients to make new medicines.
Exaggeration is totally permissible free speech, but usually it’s not very persuasive. But never underestimate the pharmaceutical companies’ ability to market a campaign.
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