Friday, June 24, 2011

Supreme Court Strikes Down Vermont Anti-Data-Mining Law

Well, I sort of called it: I said it was a foregone conclusion that the US Supreme Court would side with IMS Health and the pharmaceutical industry against the state of Vermont, and rule against its anti-data-mining law. (See previous post for background.) But I did not bargain on the sweeping nature that some observers have attributed to this ruling. NPR, for example--
--suggested that two legal challenges are sure to follow. Drug firms will attack the FDA's power to make them desist from marketing off-label uses; and the tobacco industry will fight the new "scare labels" being proposed for cigarettes. On the other hand, law professor Kevin Outterson:
--argues that Vermont can revise its statute rather easily to meet the constitutional requirements set down by the majority ruling, and that indeed that ruling is a sort of recipe for how the statute might be modified.

As a nonlawyer reading the Supreme Court opinion, I was struck by the very different logics applied by the majority and the dissenters. (By the way, in my prediction, I foresaw a 5-4 vote, but the actual vote was 6-3, with Justice Sotomayor going over to the conservative side--so much for "liberal" justices.)

The majority opinion, written by Justice Kennedy, starts with the now-widely argued position that "commercial speech" is nearly as well respected as a First Amendment right as is any other form of speech. The question then is whether the Vermont law is written narrowly enough, and cites a sufficiently compelling state interest, to justify its interferences with commercial speech. (Which in the old days we used to call "advertising.")

Based on the fact that pharmaceutical marketers find the prescriber data sold by the respondent, IMS Health, to be sufficiently worthwhile to pay big bucks for, the majority hold that drug detailing is commercial speech, and that the Vermont statute burdens this commercial speech (by interfering with the data mining that makes the speech more effective). It is at this point that the majority get their knickers in a knot, because the Vermont law would allow the selling of prescriber-identifying data for other purposes, such as public health monitoring or research. The offense here, in the view of the court majority, is that Vermont will allow speech when it likes the message, and disallow speech when it does not like the message (that is, when the speech favors prescribing high-price drugs). This seems too much like censorship and raises all the First-Amendment hackles of the justices.

An example Justice Kennedy offers seems to hint at what most offended the majority. They note that in Pennsylvania, this same sort of prescriber information was used by a state agency engaged in counter-detailing--that is, going to doctors with a message about prescribing cheaper generic drugs. This usage of the data would also be allowed by the Vermont law (though as Justice Breyer wrote in his dissent, there's no evidence that any such counter-detailing is actually going on in Vermont). So we have a situation where the use of a type of information is prohibited by law when the drug companies wish to sell their products, and is allowed by law when somebody wants to come to docs with a message not to prescribe the drug company's products. This seems to the majority to be so unfair on its face that the law is proclaimed to be unconstitutional. As typically occurs in legal decisions that by the merest chance end up serving the interests of powerful corporations, the relative power and economic muscle of the two parties being discussed here does not enter into the equation at all.

Speaking for the three dissenting justices, Justice Breyer offers a contrary view which seems to have the virtue of logic and good sense on its side--but that's probably just me. Breyer asks: exactly what is it about the Vermont law that interferes with drug companies getting their marketing message out? They can print ads, advertise on TV, hold dinners to push their drugs, and send as many detailers to docs' offices as often as they wish. All the law says is that companies cannot sell a type of data that makes these marketing efforts especially effective. Basically Breyer is saying that the whole framing of the issue by the majority, as interference with speech (commercial or otherwise) is bogus. He goes on to say that the stated goals of the law--improving public health, reducing health costs, and protecting doctor privacy--are fully sufficient to justify the law, and that there is no narrower way to write the law that would properly protect these legitimate state interests.

The majority objected to the Vermont law because its restrictions were "content-based" and "speaker-based." That is, the law censors speech based on who says it and on what it says, which violates First Amendment protections. But Justice Breyer replies that what we have here is commercial activity, and the right of the state to regulate commercial activity, which no one (openly) disputes. And any regulation of commercial activity must by its very nature be content- and speaker-based. For example, the FDA is allowed by law only to regulate drug companies and similar firms, and only to regulate marketing about drugs. Well, duh.

So in my biased view, the logic is all on the side of the dissent and not the majority. But I would lose an opportunity to repeat the basic message that runs throughout this blog if I did not fully agree with one argument made by Justice Kennedy: "Physicians can, and often do, simply decline to meet with detailers... Doctors who wish to forgo detailing altogether are free to give 'No Solicitation' or 'No Detailing' instructions to their office managers or to receptionists....If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive."

In other words, if physicians behaved like professionals instead of industry patsies, then Vermont would not need any such law. If physicians tomorrow refused to see detailers, then IMS Health would go out of business, at least so far as its business involved data-mining.

Supreme Court of the U.S., Sorrell v. IMS Health, decided June 23, 2011, no. 10-779.

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