10-779 Sorrell v. IMS Health, Inc.

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Constitutional Law
Freedom of speech

A state law providing that, absent the prescriber’s consent, prescriber-identifying information may not be sold by pharmacies and similar entities, disclosed by those entities for marketing purposes, or used for marketing by pharmaceutical manufacturers, is unconstitutional.

While Vermont’s goals of lowering the costs of medical services and promoting public health may be proper, §4631(d) does not advance them in a permissible way. Vermont seeks to achieve those objectives through the indirect means of restraining certain speech by certain speakers— i.e., by diminishing detailers’ ability to influence prescription decisions. But “the fear that people would make bad decisions if given truthful information” cannot justify content-based burdens on speech. Thompson v. Western States Medical Center , 535 U. S. 357 . That precept applies with full force when the audience—here, prescribing physicians—consists of “sophisticated and experienced” consumers. Edenfield v. Fane , 507 U. S. 761 . The instant law’s defect is made clear by the fact that many listeners find detailing instructive. Vermont may be displeased that detailers with prescriber-indentifying information are effective in promoting brand-name drugs, but the State may not burden protected expression in order to tilt public debate in a preferred direction. Vermont nowhere contends that its law will prevent false or misleading speech within the meaning of this Court’s First Amendment precedents. The State’s interest in burdening detailers’ speech thus turns on nothing more than a difference of opinion.

630 F. 3d 263, affirmed.

10-779 Sorrell v. IMS Health, Inc.

Kennedy, J.; Breyer, J., dissenting.

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