Supreme Court strikes down Vermont prescription drug privacy law

For Immediate Release
June 23, 2011

Contact
William H. Sorrell
Attorney General
(802) 828-3173

Bridget Asay
Assistant Attorney General
(802) 828-3173

The U.S. Supreme Court rejected a Vermont law that requires doctors’ consent beforetheir prescription records can be used to market prescription drugs. The Court held that the lawviolates the First Amendment rights of pharmaceutical companies and data miners who broughtsuit in 2007. “We are, of course, disappointed with this result. We knew going in that thisSupreme Court has frequently sided with large corporations. Our challenge now will be to continue to work to protect medical privacy and reduce health care costs without violating theSupreme Court’s ruling. This is a step back, but not the end of the story,” said Attorney General Bill Sorrell.

The federal government, 35 states, organizations representing over 100,000 doctors, consumer groups and privacy experts supported Vermont’s appeal to the U.S. Supreme Court to uphold the state’s Prescription Confidentiality Law. In a decision authored by Justice Kennedy, the Court stated that Vermont’s law impermissibly “disfavors marketing,” and “disfavors specific speakers, namely pharmaceutical marketers.” Justice Breyer, joined by Justices Ginsburg and Kagan, would have upheld the law because, in their view, the evidence showed that it would advance Vermont’s interests in protecting public health and privacy.

Vermont enacted the Prescription Confidentiality Law in response to the Vermont Medical Society’s unanimous resolution in 2006 that the sale and marketing use of doctors’prescribing practices without consent is “an intrusion into the way physicians practice medicine.”Many pharmacies sell records that reveal which doctors prescribe which drugs, as well as the ageand gender of the patient receiving the drug, without the consent of doctor or patient. Datamining companies buy these records and sell them to drug companies that then use them to target certain doctors with marketing for the newest and most expensive drugs. Vermont’s lawrequired that doctors consent before their prescribing practices can be used for marketing.Similar laws were enacted in New Hampshire and Maine. The U.S. Supreme Court’s decision in the case, Sorrell v. IMS Health Inc., No. 10-779, is available here. A list of all briefs filed in Vermont’s U.S. Supreme Court case is available here.