Freedom and Unity to Use IMS Prescribing Data in Vermont

By Ben Wolf* and Jeff Wasserstein –

Justice Kennedy delivered the opinion of the Supreme Court in today’s 6-3 decision in Sorrell v. IMS Healthcare Inc. (Docket No. 10-779). This decision strikes down a Vermont law prohibiting the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors for use in the marketing of drugs.  This data is frequently used by pharmaceutical companies in targetting physicians for detailing and other marketing activities.

Vermont argued that it had enacted the Prescription Confidentiality Law (Vt. Stat. Ann., Tit. 18, § 4631) in an attempt to:

(1) protect medical privacy by reducing the dissemination of physician prescribing information;

(2) avoid harassment when detailers visit the physician’s office by reducing the detailers’ incentive to visit;

(3) preserve the integrity of the doctor-patient relationship by assuaging patient fears that their physicians are being unduly influenced by the drug companies; and

(4) lower healthcare costs by reducing the amount of brand name drugs prescribed. 

However, the Supreme Court found that § 4631 was ineffective in these goals, and impermissibly burdened the First Amendment free speech rights of those seeking to use the IMS prescribing data for sales purposes.

Now that § 4631 has been struck down, companies that obtain prescription data from IMS to analyze for use in drug sales are once again free to use this data in detailing to physicians in the “Freedom and Unity” state.  This decision will spell an end to similar laws in New Hampshire and Maine, which had previously been upheld by the First Circuit.

*Law Student