Sorrell v. IMS Health Inc.

Background

This case arose after Vermont passed Act 80, which barred pharmacies and others from selling, disclosing, or allowing use of records that identify individual doctors’ prescriptions for marketing unless the doctor first consented. The challengers were two types of private groups: companies that analyze pharmacy records (data miners) and an association of brand-name drug makers. They sued state officials, saying §4631(d) violated the First Amendment; the District Court denied relief, the Second Circuit reversed, and the Supreme Court heard the case.

Reasoning

The Court addressed whether Vermont’s rule was a content- and speaker-based restriction on protected speech and thus required heightened judicial scrutiny. The Court found that §4631(d) singled out marketing speech and detailers who represent drug makers, and legislative findings confirmed that aim. Applying heightened scrutiny, the Justices concluded Vermont’s privacy and cost-saving arguments did not sufficiently justify the broad, content-based restrictions and so the law failed constitutional review.

Real world impact

The decision allows data miners and pharmaceutical marketers to continue buying and using prescriber-identifying information for marketing, limiting states’ ability to impose broad content-based bans. It directly affects pharmacies, data firms, drug companies, and doctors whose prescription records are involved. The Court suggested states could pursue narrower privacy protections, but this ruling invalidates Vermont’s sweeping marketing ban and resolves a split among lower courts over similar laws.

Dissents or concurrances

Justice Breyer, joined by Justices Ginsburg and Kagan, dissented. He argued the statute was an ordinary commercial regulation of data gathered under government mandates, posed only a modest speech burden, and reasonably advanced privacy, health, and cost goals, so it should have been upheld.