January 7, 2011– The United States Supreme Court today will hear First Amendment appeal to Vermont’s Rx data use ban.
Earlier First Circuit federal appeals court decision set up the Supreme Court appeal.
Late last year, the 2nd Circuit Court invalidated the Vermont version of the Rx data restriction law, finding it a violation of the First Amendment. This 2nd Circuit decision is contrary to a 1st Circuit Court decision on similar facts, setting up the US Supreme Court appeal granted today. Although a victory in the Supreme Court is not assured, the Supreme Court has fiercely protected commercial speech in virtually nearly every case before it since the “Central Hudson” test was announced by the Court in the 1970’s.
The pending Supreme Court appeal will likely slow the proliferation of state laws that restrict industry use of perscription data gathered from pharmacies. These data enable pharma marketers to more carefully target communication, education and marketing to doctors and patients about safe how much cialis and effective use of drugs. Restrictions on use of data for these purposes has been strongly encouraged by the Pew Prescription Project and NLARx, foes of the pharma industry. The Coalition for Healthcare Communication has long supported court challenges of these statutes, believing that they harm patients by restricting the free flow of information to doctors and patients.
Below is the holding of the 2nd Circuit, killing the Vermont statute. We will post updates and analysis as the appeal proceeds.
“We conclude that because section 17 is a commercial speech restriction that does not directly advance the substantial state interests asserted by Vermont, and is not narrowly tailored to serve those interests, the statute cannot survive intermediate scrutiny under Central Hudson. Therefore, we reverse and remand the judgment of the district court.”
Click below for a PDF copy of the full decision.