Dissenting Once More – Why the Supreme Court Ruling in Sorrell v. IMS is Also Wrong

The Supreme Court recently ruled on Sorrell v. IMS Health, a case I wrote about in April.  At that time I disagreed with the Appellate Court ruling.  The Supreme Court upheld the ruling, and so again I join the dissent.

Here’s the background from the last post –

By law, pharmacies are required to collect certain data about the prescriptions they fill including the prescriber’s name and address; the name, dosage, and quantity of the drug prescribed; the date and location where it was filled; and the patient’s age and gender.  Pharmacies sell this data to data-mining companies (like IMS Health, Verispan, and Source Healthcare Analytics) who aggregate the data to reveal physician prescribing patterns.  They then sell this information to pharmaceutical companies who use it to solicit physicians (also known as “detailing”).  (See my post – The Costs of Living – Part 2 where I discuss these solicitation practices and their effects on pharmaceutical prices).  Pharmaceutical companies say they need the PI for their “detailing” efforts so that they can focus marketing messages for individual prescribers, direct scientific and safety messages to physicians, track disease progress, and conduct post-marketing surveillance among other marketing endeavors.

In 2007, Vermont passed a law[1] (similar to laws in New Hampshire and Maine[2]) prohibiting the sale of prescriber-identifiable data for marketing or promoting a prescription drug unless the prescriber consents.[3]   The state’s legislative intent was to protect the privacy of doctors and the information about patient’s prescriptions, reduce health care costs by encouraging prescription of generic drugs, and to protect public health.  (To read more, see the previous post)

Note: I am not a constitutional scholar.  But I will do my best.

IMS Health and other data-mining and pharmaceutical companies argued that the Vermont law unlawfully restricted their First Amendment right to free speech.  Vermont continued to contend that the law is necessary to keep doctors’ prescribing information safe and to make sure that doctors aren’t unduly swayed by pharmaceutical companies to prescribe medications that are not in the best interest of their patients.  The Supreme Court sided with the data-mining and pharmaceutical companies holding that the justifications Vermont put forth did not warrant the burden they placed on free speech.

Why the focus on the First Amendment when this case that has to do with collecting and selling data?  The Court found that the Vermont law disfavours marketing, which uses this data and marketing is considered speech.  They also found that the law disfavours speakers, the pharmaceutical companies who use the data.  In effect, the Court finds, the restriction on data-miners and pharmaceutical companies prohibits them from effectively communicating with doctors.

Justice Anthony Kennedy, who wrote the Court’s final decision, though noting that Vermont had a legitimate interest in protecting consumers and physician confidentiality, this law did not really do so.  They found that the law was basically aimed at blocking one sort of “speech” that the legislature did not agree with – mainly the activities of detailing that results from the use of the data in question.  Even if doctors felt “harassed” by detailers who obtained this information as Vermont contended, as Kennedy said, “[m]any are those who must endure speech they do not like, but that is a necessary cost of freedom.”  Thus the Court found the law was not justified.  In fact, the Court found “[t]he more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment.  If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive” and that “many listeners find detailing instructive.”

Further the Court found this law did not restrict academic organizations, insurers, journalists, the State or others, or in his view “an almost limitless audience.”  Kennedy envisioned addressing the state’s concerns by enacting a law that would allow “the information’s sale or disclosure in only a few narrow and well-justified circumstances.”

I dissent, as do Justices Breyer, Ginsburg and Kagan.

Justice Breyer wrote the dissent quite convincingly arguing that the Vermont law “deprives pharmaceutical and data-mining companies of data, collected pursuant to the governments regulatory mandate, that could help pharmaceutical companies create better sales messages” and that this is a “lawful governmental effort to regulate a commercial enterprise.”  Aptly, Breyer also contends that the majority’s ruling holds the law to a standard that’s too high.

Justice Breyer also reasons that elected governments should be able to implement their policy choices.  He warned that the majority’s opinion runs the risk of allowing the courts too much power, which in the past was “much abused” to decide policy.  In effect, Breyer points out that “Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view…”

For these reasons and others, I would side with the dissenting Justices.  I think that Justice Kennedy is right in that the law is maybe not the perfect way to go about protecting physician’s confidential information or protecting consumers.  But it doesn’t have to be perfect, and as we know, no law is ever perfect.  As the Court said before (In US v. Edge Broadcasting Co[4].), “the First Amendment does not ‘require that Government make progress on every front before it can make Progress on any front.’”

I find it ridiculous to imagine this data as speech of any sort.  I find it ridiculous that pharmaceutical companies can use this information to harass doctors who should be left to focus on the treatment of their patients.  Doctors are capable of researching unbiased information on pharmaceuticals best suited for their patients.  I cannot understand how Justice Kennedy imagines that the information pharmaceutical companies supply are either “benign” or “beneficial” when in fact the data is used to manipulate doctors by providing only certain data that makes their drug look good.  Instead of relying on its own merits including data on the drug’s effectiveness and safety, the data merely helps pharmaceutical companies craft a sales pitch which wastes time and money using confidential information.

I agree with Breyer that it’s not for the courts to decide policy.  And that the policy Justice Kennedy presents – namely that if Vermont wants to restrict access to the data they should enact a law that ensured “prescriber identifying information could not be sold or disclosed in narrow circumstances…”  But if the majority’s argument centers on ensuring the law is, as they say, “narrowly tailored” to meet the State’s policy goals, this law would in fact impose a GREATER burden on the dissemination of information, as Breyer points out.

As I said before, the fact that this was even brought up under the First Amendment makes no sense.  But as that is the case, the Court forgets that it already held that the First Amendment “does not carry with it the unrestrained right to gather information.”[5]  Thus, just because the information is there does not mean that anyone and everyone should have access to it. And that, as Judge Livingston of the Appeals Court pointed out, the marketing messages themselves are NOT restricted in any way by this law or the lack of data.

Finally, I cannot abide by pharmaceutical companies inserting themselves in the doctor-patient relationship, which should be upheld at all costs.  The data here, as I said before, is linked to confidential patient information.  Just because the patient’s name is encrypted does not mean that patient’s information is safe when the prescribing information is available.  The only reason prescribing information should be used are for research, to ensure insurance claims are correctly paid, and for regulatory purposes (like illegal prescription practices). Thus not only are pharmaceutical companies providing biased information, wasting money and time, they are encroaching on a sacred relationship wherein doctors prescribe medicine that is in their best interests and patients can feel assured that their information is safe.

For all these reasons and more, the Supreme Court’s decision is also wrong.  They sided once more with corporate entities instead of upholding a law to protect the people of Vermont.

[1] Vt. Stat. Ann. tit. 18, §4631 (a) & (d).

[2] See IMS Health Inc. v. Ayotte, 490 F. Supp. 2d 163; IMS Health Corp. v. Rowe, 532 F. Supp. 2d 153.

[3] Vt. Stat. Ann. tit. 18, §4631 (a) & (d).

[4] US v. Edge Broadcasting Co., 509 US 418, 434 (1993).

[5] Zemel v. Rusk, 381 U.S. 1, 17.


2 Responses to Dissenting Once More – Why the Supreme Court Ruling in Sorrell v. IMS is Also Wrong

  1. JJ says:

    I have to agree with you. Marketing is protected speech, but how can data mining, for the purpose of more effective marketing, be considered any kind of speech whatsoever?

  2. […] Dissenting Once More – Why the Supreme Court Ruling in Sorrell v. IMS is Also Wrong (on selling your pharmacy data) […]

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