Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” Pharmacies receive “prescriber-identifying information” when processing prescriptions and sell the information to “data miners,” who produce reports on prescriber behavior and lease their reports to pharmaceutical manufacturers. “Detailers” employed by pharmaceutical manufacturers then use the reports to refine their marketing tactics and increase sales to doctors. Vermont’s Prescription Confidentiality Law provides 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. Vt. Stat. Ann., Tit. 18, §4631(d). The prohibitions are subject to exceptions that permit the prescriber-identifying information to be disseminated and used for a number of purposes, e.g., “health care research.” §4631(e).
Respondents, Vermont data miners and an association of brand-name drug manufacturers, sought declaratory and injunctive relief against state officials (hereinafter Vermont), contending that §4631(d) violates their rights under the Free Speech Clause of the First Amendment. The District Court denied relief, but the Second Circuit reversed, holding that §4631(d) unconstitutionally burdens the speech of pharmaceutical marketers and data miners without adequate justification.
