Sorrell v. IMS Health Inc.
564 U.S. 552
SCOTUS2011Background
- Vermont enacted Act 80, including § 4631(d), prohibiting sale, disclosure, or use of prescriber-identifiable information for marketing absent prescriber consent, with narrowly drawn exceptions.
- Prescriber-identifying data are generated through prescription processing and are sold by data miners to pharmaceutical manufacturers to tailor marketing (detailers).
- Detailing involves in-person visits to doctors with drug information; knowledge of prescribing practices helps target messages to physicians, especially for brand-name drugs.
- The law targets manufacturers and marketers by restricting their use of prescriber data for marketing, while allowing others (researchers, insurers, etc.) to use the data for non-marketing purposes under exceptions.
- Two consolidated suits were brought by Vermont data miners and a pharmaceutical manufacturers’ association; district court denied relief, and the Second Circuit reversed, ruling § 4631(d) violated the First Amendment. Supreme Court granted certiorari.
- The majority preserves the case’s First Amendment questions by evaluating § 4631(d) as content- and speaker-based restraints in a regulatory context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 4631(d) a content- and speaker-based restriction on speech? | Manufacturers argue the law targets messaging to physicians and penalizes a class of speakers (detailers). | The State contends it is a permissible commercial-regulation measure restricting use of data for marketing. | Yes; burdens are content- and speaker-based and trigger heightened scrutiny. |
| Does § 4631(d) fail Central Hudson’s test for commercial speech? | The data-restriction aims to limit persuasive marketing and thus requires substantial justification. | Regulation is neutral with respect to messages and serves public health/privacy interests. | Yes; the statute does not satisfy Central Hudson’s fit between ends and means. |
| Do Vermont’s asserted privacy and public-health goals justify the content- and speaker-based burdens? | Privacy and anti-harassment protections justify restricting disclosure and use of data for marketing. | Regulatory privacy is insufficient to sustain a broad content- and speaker-based ban; alternatives exist. | No; the burdens are not sufficiently tailored to achieve the interests. |
| Could a more limited restriction (narrower sale/disclosure allowances) be constitutionally permissible? | A narrower regime focusing on the least-restrictive means could satisfy interests. | The current framework includes narrow exceptions and does not demonstrate an equally effective alternative. | Not enough to save the statute; the challenged provisions fail First Amendment scrutiny. |
Key Cases Cited
- Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557 (Supreme Court 1980) (intermediate scrutiny for lawful regulation of commercial speech)
- Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (Supreme Court 1976) (unbiased information and consumer protection in commercial speech)
- R. A. V. v. City of St. Paul, 505 U.S. 377 (Supreme Court 1992) (content-based restrictions presumptively invalid)
- Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (Supreme Court 1993) (government can regulate commercial speech with intermediate scrutiny)
- United States v. O’Brien, 391 U.S. 367 (Supreme Court 1968) (regulation of symbolic speech; test for governmental regulation of expressive conduct)
- Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32 (Supreme Court 1999) (facial challenges to access-to-information regimes; difference between government-held vs private information)