This month we discuss IMS Health Inc. v. Sorrell,1 in which the U.S. Court of Appeals for the Second Circuit struck down as unconstitutional a Vermont statute that banned the sale, transmission, or use of prescriber-identifiable data for marketing purposes by data mining companies and pharmaceutical manufacturers. The decision, written by District Judge John G. Koeltl (sitting by designation) and joined by Senior Circuit Judge Wilfred Feinberg, concluded that the Vermont statute placed an impermissible restriction on commercial speech under the First Amendment. The majority’s decision was accompanied by a lengthy dissenting opinion, written by Circuit Judge Debra Ann Livingston, and is at odds with two recent decisions by the U.S. Court of Appeals for the First Circuit.
Background and History
In Vermont, pharmacies that fill prescriptions also collect prescriber-identifiable data (PI data), including the prescriber’s name and address, the patient’s age and gender, the drug name, dosage, quantity, and date and place the prescription is filled. Pharmacies then sell the PI data to data miners, which in turn aggregate the data and sell them to pharmaceutical manufacturers.
