U.S. Supreme Court strikes down as unconstitutional Vermont's ban on access to and commercial use of nonpublic drug prescriber information
Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing runs afoul of the First Amendment.
The U.S. Chamber urged the Supreme Court to hold that a Vermont law targeting pharmaceutical companies violates the First Amendment. The law in question restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information is sold or used in marketing. In its brief, the Chamber argued that the information allows pharmaceutical companies to target individuals who could benefit from certain drugs, and that the law improperly prohibits comparisons between drugs, discussions of medical research, and some analyses of side effects. The free flow of commercial information between pharmaceutical companies and customers is necessary for individuals to make informed decisions about their health care.
The Court held that the law violated the First Amendment. The Court agreed with the U.S. Chamber that a law of the type Vermont passed is subject to strict scrutiny due to the restrictions placed on both the content of the speech and the identity of the speaker.
Under the heightened scrutiny standard, the law is invalid. The Court reasoned that given the widespread availability of the information and its many permissible uses, the interest in physician confidentiality could not justify the burdens that the law imposes. While Vermont burdened a form of protected expression that it found too persuasive, it also left unburdened those speakers whose messages are in accord with its own views. Agreeing with NCLC, the Court held that Vermont cannot pick and choose which message it favors that will be free from First Amendment scrutiny.