Is selling patient data protected by the First Amendment?
The appellants, IMS Health Inc., Verispan, LLC, Source Healthcare Analytics, Inc., and Pharmaceutical Research and Manufacturers of America challenge a Vermont statute banning the sale, transmission, or use of prescriber-identifiable data for marketing or promoting a prescription drug unless the prescriber consents. In 2007, Vermont enacted the statute at issue, namely Vt. Acts No. 80, § 17 (2007). The appellants appeal from a judgment of the United States District Court for the District of Vermont finding section 17 to be a constitutional restriction on commercial speech pursuant to Central Hudson Gas Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561-661(1980), and finding that section 17 does not violate the Commerce Clause, art. I, § 8, cl. 3, of the United States Constitution. IMS Health Inc. v. Sorrell, 631 F.Supp.2d 434 (D.Vt. 2009).
1. Is the gathering and sale of prescriber-identifying information (without the consent of the prescriber or the patient) protected by the First Amendment?
2. Is the aforementioned information commercial speech?
ALF’s Amicus Brief:
In an amicus brief ALF argues that all information is protected by the first amendment, and that information transmission, even if transmitted via sale, is not commercial speech. ALF argues for a narrow view of what constitutes commercial speech. Commercial speech is only speech that directly proposes or suggests a commercial transaction. Subsequently, the transmission of information that may help a company target a consumer for a future proposal is not commercial speech. Because the Vermont law inhibits non-commercial speech, it is scrutinized under strict scrutiny, a test which it fails.
Status:
On November 3, 2010, the Second Circuit issued a favorable opinion.
Later the Supreme Court issued a favorable opinion.
