Health Care Law Blog

US Supreme Court Protects the Free Speech of Pharmaceutical Detailers

The US Supreme Court recently delivered a victory to data miners and pharmaceutical manufacturers in a June 23, 2011 decision, which held that a Vermont statute was an unconstitutional restriction of free speech rights.  In William Sorrell v IMS Health, Inc., 564 US --- (2011), the Court reviewed a Vermont statute that prohibited the use of prescriber-identifiable information (details of a physician's prescription practices) for marketing or promoting a prescription drug.   The statute was intended to target the practice of "detailing" a pharmaceutical representative's use of a particular physician's prescribing history to tailor a sales pitch to that physician in an effort to persuade him or her to prescribe certain (high profit or brand name) drugs.  Because various Circuit Courts of Appeal had reached opposite conclusions on the constitutionality of similar statutes, the United States Supreme Court agreed to hear the case.

The statute at issue established rules concerning the sale and use of regulated records containing prescriber-identifiable information.  It prohibited the sale, license or exchange of such records as well as their use in marketing or promoting a prescription drug, without the prescriber's consent.

The Supreme Court initially noted that the statute was, on its face, a content-based burden on protected expression which places it under heightened judicial scrutiny.  Specifically, the statute disfavors " speech with a particular content.  More than that, the statute disfavors specific speakers, namely pharmaceutical manufactures.  As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints.  Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers…The law on its face burdens disfavored speech by disfavored speakers."  Accordingly, the statute was subject to heightened judicial scrutiny. 

The State had argued that the statute was necessary for two reasons: (1) to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship; and (2) to achieve the policy objectives of improving public health and reducing healthcare costs.  In recognizing that physician's have an interest in keeping their prescription decisions confidential, the Court noted that the statute did not further that interest by offering only a "limited degree of privacy…on terms favorable to the speech the State prefers."  The Court also recognized that the State may well be displeased that the detailers were successful in promoting their brand-name drugs, but reaffirmed that the State "may not burden the speech of others in order to tilt public debate in a preferred direction."  The Court therefore held that the statute was unconstitutional.

Although this decision is seen as a victory for pharmaceutical manufacturers and other detailers, a physician who does not want his or her prescribing data to be used for marketing purposes still has options.  The American Medical Association ("AMA") Physician Data Restriction Program allows physicians to withhold their prescribing data from marketers while making it available to medical researchers.  They must simply register for this program through the AMA (see link below).

If you have any questions about how the Court's decision may affect your practice, please contact a member of Foster Swift's Health Care Practice Group. 

Categories: Physicians