TechFreedom filed an amicus brief today urging the Supreme Court to strike down a Vermont law restricting
the use of data for marketing name brand pharmaceuticals to doctors — a
practice called "detailing." The Second Circuit struck down the law
last November as an unconstitutional restriction on the commercial
speech rights of companies that process data about doctors' prescription
histories, because Vermont's asserted justifications for the statute-—reducing drug costs and protecting privacy--were unsubstantiated.
Vermont then appealed to the Supreme Court.
Richard Ovelmen, a Partner at Jorden Burt LLP, long-time First Amendment litigator, and TechFreedom's pro bono lead
counsel on the brief stated, "I believe the Supreme Court will declare
Vermont's gratuitously paternalistic law unconstitutional." Ovelmen
denounced Vermont's obvious intention to use this opt-in requirement to
suppress speech recommending the use of name brand drugs over generally
cheaper generic versions. "The Court has repeatedly stated that the
First Amendment prohibits a state from discriminating against the
dissemination of truthful information because it fears that the speech
will cause recipients to make decisions it does not like."
TechFreedom joined with other free speech advocates last year in a broader amicus brief
urging the appeals court to strike down Vermont's law. TechFreedom
President Berin Szoka explained: "Several Justices have called for the
court to abolish its distinction between commercial and non-commercial
speech to protect all speech equally. But so long as the Court
maintains its double standard, it must apply the highest level of First
Amendment scrutiny to regulations affecting both forms of speech. This
case is a perfect example of how restrictions on the free flow of data
can burden not just marketing but also research, medical care,
journalism and even sound policymaking."
The
so-called "data miners" who won at the appellate level process data
from pharmacies about what kinds of drugs doctors prescribe, de-identify
the data to protect patients' privacy, and then transfer that processed
data to a variety of downstream users, including drug companies,
researchers, journalists, and health policymakers. The Vermont law
requires that doctors opt-in before drug companies may use data about
their prescription patterns to market drugs to them. While the law
restricts the use of prescriber data only for drug marketing purposes,
it would effectively shut off the availability of processed data for
other purposes because only "detailing" can financially sustain data
processing.
"Vermont
has invented a specious privacy rationale for a law that does nothing
to protect patient privacy," said Szoka. "By applying strict scrutiny
here, the Court can provide a clear framework for lawmakers to reconcile
privacy and free speech. Vermont's law clearly fails that test, but
strict scrutiny won't prevent future lawmakers from enacting effective
laws narrowly tailored to addressing real, not imagined, privacy
problems. As data about an audience's likely interests becomes more and
more essential to making all forms
of speech effective, privacy and free speech will increasingly
clash—unless the Court applies the logic of its past decisions to
clarify that the First Amendment remains alive in the age of
personalized messaging."
Berin Szoka is available for comment at media@techfreedom.org
TechFreedom
is a non-profit, non-partisan technology policy think tank. We work to
chart a path forward for policymakers towards a bright future where
technology enhances freedom, and freedom enhances technology.
