PIJIP Project Files Supreme Court Amicus Brief in Sorrell v. IMS.


Prof. Sean Fiil-Flynn
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WASHINGTON, March 2, 2011 -- On Tuesday, American University Washington College of Law Program on Information Justice and Intellectual Property (PIJIP) Associate Director Sean Flynn and Policy Fellow Meredith Jacob filed an amicus brief before the U.S. Supreme Court in an important information privacy case. The brief was filed on behalf of AARP and the National Legislative Association on Prescription Drug Prices (NLARx).  The brief argues that the Supreme Court should uphold Vermont’s Prescription Confidentiality Law and overturn the decision of the United States Court of Appeals for the Second Circuit.  The case is Sorrell v. IMS (No. 10-779).

This case has broad ramifications for consumer protection and privacy law.  “The Court should make clear that the First Amendment is not implicated when, having mandated the disclosure of medical information, the state protects that confidential information from non-consensual marketing uses,” says Prof. Flynn.

Vermont’s law requires prescriber consent for the sale or use of physician-identifying prescription records for marketing purposes.  This data is used to build detailed profiles of physician prescribing habits and track de-identified patients over time.  These profiles are then used for aggressive in-person marketing of prescription drugs to physicians, increasing prescription costs and the over-prescription of the most expensive medicines.  Similar laws have been passed in New Hampshire and Maine, and have been upheld by the Court of Appeals for the First Circuit.

The Vermont District Court upheld the law, finding that there was a substantial state interest in protecting the data.  Overturning that decision, the Second Circuit found that this protection violated the First Amendment rights of data mining companies that buy this data and sell it to pharmaceutical companies for marketing purposes.  The State of Vermont’s petition for certiorari was granted by the Supreme Court and oral argument is scheduled for April 16, 2011.

PIJIP’s brief argues that when the state acts to protect confidential information required to fill a prescription, it does not implicate the First Amendment.  Even when the law is examined under the First Amendment Commercial Speech Doctrine, there is a substantial state interest in protecting patient privacy and the doctor-patient relationship.  Further, the state has an interest in limiting the undue influence exerted by pharmaceutical marketers – influence that negatively affects patient treatment and increases health care costs.

As the PIJIP brief for AARP and NLARx argues:

This Court should refuse to apply the First Amendment to Vermont’s Prescription Confidentiality Law based on two essential facts. First, the regulation at issue is limited to the commercial use or private-channel distribution of confidential data. It is thus governed by cases of this Court upholding the regulation of uses of information in purely private settings that do not inform or contribute to the public sphere. Bartnicki v. Vopper, 532 U.S. 514, 526-27 n.10 (2001); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985). Second, it concerns the regulation of secondary uses of information where the government requires the initial disclosure. It is thus governed by cases in which this Court has affirmed a right of governments to restrict access to government held or mandated information. L.A. Police Dept. v. United Reporting Publ’g Corp., 528 U.S. 32 (1999); Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984). This Court has never held that a regulation at the intersection of these two lines of cases – where private channel exchanges and uses of private (government-mandated)  records are at issue – is First Amendment protected “speech.” Cf. Reno v. Condon, 528 U.S. 141 (2000). The First Circuit, in a case parallel to the one before the Court now, decided the issue correctly – the private-channel use and trade of prescription records is economic conduct, not “speech.” IMS Health, Inc. v. Ayotte, 550 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2864 (2009).

If this law were evaluated as regulating First Amendment protected speech, such speech should be given protection commensurate with its “nugatory informational value.” Ayotte, 550 F.3d at 52. In contrast, this Court should recognize the overriding interests of Vermont and other states in regulating the confidentiality of prescription records. The Vermont law directly advances its interest in protecting against disclosure of records containing the most personal of information as well as its interest in protecting individual autonomy in decision making on important personal matters. NASA v. Nelson, 562 U.S. __ (2011); Whalen v. Roe, 429 U.S. 589 (1977). Protecting the confidentiality of records advances important goals of our health system, including combating undue influence of in person pharmaceutical marketing that raises costs and damages public health interests. See Ohralik v. Ohio Bar Ass’n, 436 U.S. 447 (1978).

See the full brief and related documents on the PIJIP website at wcl.american.edu/pijip/go/rx-data

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