Second Circuit Court of Appeals Overturns Vermont Law


A panel of the United States Court of Appeals for the Second Circuit has struck down a section of a Vermont law that prohibits the sale or use of data identifying health care providers’ prescribing patterns in the marketing or promoting of prescription drugs, without the prescriber’s consent. No information revealing the identity of the patient is collected or disclosed.

The Court held that section 17 of the law is unconstitutional because it is an impermissible restriction on commercial speech. The decision reverses an April 2009 decision by the U.S. District Court for the District of Vermont.

The Court noted that, because the section is an attempt to influence the prescribing conduct of doctors by restricting the speech of others – namely data miners and pharmaceutical manufacturers – it does not directly advance the state’s interests . Instead, the statute restricts protected speech when uttered for purposes the government does not approve of in order to reduce the effectiveness of marketing campaigns and, ultimately, alter the behavior of prescribers, who are not regulated by the statute. This route is too indirect to survive intermediate scrutiny.

Atlantic Legal, acting as counsel of record and co-counsel with New England Legal Foundation, had filed an amicus brief on behalf of NELF, urging that the Vermont law be overturned.

To view the Court’s decision, click here.