Vermont, drug companies to battle at Supreme Court

The U.S. Supreme Court will hear oral arguments Tuesday morning in a challenge to state laws that restrict pharmaceutical companies’ access to doctors’ prescribing information. 

The case pits the state of Vermont against drug manufacturers and data-mining firms that sell data on prescriptions written by doctors to drug companies, who can then target their marketing to physicians to sell more pharmaceuticals.


Vermont’s law bans the sale of the prescribing information unless doctors specifically “opt in” and make their records available.

Vermont’s government uses the information collected from physicians to encourage doctors to write more prescriptions for generic drugs. By limiting the amount of data available to drugmakers, the state says it is leveling the playing field between generic drug producers and brand-name pharmaceutical companies and lowering the cost of drugs.

States across the country are dealing with high Medicaid costs, and the case before the Supreme Court could help determine whether states can crack down on marketing by big pharmaceutical companies as they try to rein in their spending on prescription drugs.

Pharmaceutical makers argue they’re being unfairly targeted by Vermont’s law — particularly because the state’s pro-generics campaign can use some of the same records to which drug salesmen have limited access.

Information sold by data-mining firms is still available for non-marketing purposes — such as public health research and a state program that encourages doctors to prescribe generics instead of more expensive brand-name drugs.

Data-mining firms such as IMS Health, which brought the suit over Vermont’s restrictions, says the prescription information it collects and then sells to drugmakers represents a simple commercial transaction in which the government has no right to interfere.

In an argument backed by big drugmakers, IMS Health says Vermont is targeting one form of commercial speech solely because of its message.

“Under the First Amendment, Vermont has no legitimate interest in insulating prescribers from that truthful communication on a matter of public concern,” IMS stated in a brief in the case. “The Constitution forbids such paternalistic efforts to limit the free exchange of information.”

But Vermont argued that First Amendment precedents “also recognize a right not to speak and a right to be let alone” and said the Supreme Court has previously upheld restrictions on the use of information that is not publicly available. The state’s brief emphasizes that the law does not directly prohibit the selling of prescription information, framing it instead as requiring doctors’ consent before their prescribing information is used for marketing purposes.

“Laws that allow individuals to control the use of their nonpublic information serve those interests and do not violate the First Amendment,” the state’s brief said.