Thursday, June 23, 2011

Sorrell v. IMS on First Amendment

The issue was the conflict between a Vermont state law and the process of detailing:

Pharmaceutical manufacturers promote their drugs to doctors through
a process called “detailing.” Pharmacies receive “prescriber-
identifying information” when processing prescriptions and sell the
information to “data miners,” who produce reports on prescriber be-
havior and lease their reports to pharmaceutical manufacturers.
“Detailers” employed by pharmaceutical manufacturers then use the
reports to refine their marketing tactics and increase sales to doctors.
Vermont’s Prescription Confidentiality Law provides that, absent the
prescriber’s consent, prescriber-identifying information may not be
sold by pharmacies and similar entities, disclosed by those entities
for marketing purposes, or used for marketing by pharmaceutical
manufacturers. Vt. Stat. Ann., Tit. 18, §4631(d).

The outcome:

(a) The outcome here is the same whether a special commercial
speech inquiry or a stricter form of judicial scrutiny is applied, see,
e.g., Greater New Orleans Broadcasting Assn., Inc. v. United States,
527 U. S. 173, 184. To sustain §4631(d)’s targeted, content-based
burden on protected expression, Vermont must show at least that the
statute directly advances a substantial governmental interest and
that the measure is drawn to achieve that interest. See Board of
Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480–481. Ver-
mont contends that its law (1) is necessary to protect medical privacy,
including physician confidentiality, avoidance of harassment, and the
integrity of the doctor-patient relationship, and (2) is integral to the
achievement of the policy objectives of improving public health and
reducing healthcare costs. Pp. 15–17.
(b) Assuming that physicians have an interest in keeping their
prescription decisions confidential, §4631(d) is not drawn to serve
that interest. Pharmacies may share prescriber-identifying informa-
tion with anyone for any reason except for marketing. Vermont
might have addressed physician confidentiality through “a more co-
herent policy,” Greater New Orleans Broadcasting, supra, at 195,
such as allowing the information’s sale or disclosure in only a few
narrow and well-justified circumstances. But it did not.

**The LA Times wrote about another Supreme Court decision, Pliva v. Mensing:

n tossing out their claims in Pliva Inc. vs. Mensing, Thomas put the blame on "the special, and different, regulation of generic drugs."

They are supposed to be copy-cat versions of the original, he said, so the makers cannot be sued for failing to give patients new and different warnings as they develop.

But the dissenters, led by Justice Sonia Sotomayor, said the generic drug maker should have alerted the FDA to the danger and then updated its warning label. "This outcome makes little sense," she wrote. Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan agreed.

A consumer rights lawyer said the ruling stripped many Americans of an important legal right. "Three out of four patients just lost the right to sue" if they use a generic drug and suffer complications for which they were not warned, said Louis Bograd, counsel for the Center for Constitutional Litigation. These patients "appear to be left without any legal remedy."

**Note also Bullcoming v. New Mexico:

The Sixth Amendment’s Confrontation Clause gives the accused “[i]n
all criminal prosecutions, . . . the right . . . to be confronted with the
witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59,
this Court held that the Clause permits admission of “[t]estimonial
statements of witnesses absent from trial . . . only where the decla-
rant is unavailable, and only where the defendant has had a prior
opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachu-
setts, 557 U. S. ___, the Court declined to create a “forensic evidence”
exception to Crawford, holding that a forensic laboratory report, cre-
ated specifically to serve as evidence in a criminal proceeding, ranked
as “testimonial” for Confrontation Clause purposes. Absent stipula-
tion, the Court ruled, the prosecution may not introduce such a re-
port without offering a live witness competent to testify to the truth
of the report’s statements. 557 U. S., at ___.


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