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Communication Law Keyed to Benjamin, 2nd Ed.
Sorrell v. IMS Health Inc.
Citation:
564 U.S. 552, 131 S. Ct. 2653 (2011)Facts
Pharmaceutical companies promote their drugs to doctors through a process called “detailing,” where sales representatives visit doctors’ offices to persuade them to prescribe particular drugs. Pharmacies receive prescriber-identifying information when processing prescriptions and sell this information to data mining companies, which analyze the data and produce reports on prescriber behavior. These reports are then leased to pharmaceutical manufacturers, who use them to refine their marketing tactics.
In 2007, Vermont enacted the Prescription Confidentiality Law, which prohibited pharmacies from selling prescriber-identifying information or allowing its use for marketing without the prescriber’s consent, and prohibited pharmaceutical manufacturers from using such information for marketing without consent. The Vermont legislature found that pharmaceutical marketing often conflicts with state goals, causes doctors to make decisions based on incomplete information, increases healthcare costs, and encourages hasty reliance on brand-name drugs.
IMS Health and other data mining companies, along with an association of pharmaceutical manufacturers, challenged the law as a violation of their First Amendment rights. The District Court upheld the law, but the Second Circuit reversed, finding it unconstitutional. The Supreme Court granted certiorari to resolve a circuit split.
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