## Facts

- Vermont enacted a Prescription Confidentiality Law restricting use of “prescriber-identifying information” showing which doctors prescribed which drugs.
- Pharmacies obtained this information when filling prescriptions and sold it to data-mining firms, which aggregated and leased it to pharmaceutical manufacturers.
- Manufacturers used the information for “detailing,” in which sales representatives tailored marketing messages to doctors’ prescribing histories.
- The statute barred, absent prescriber consent, (1) sale of prescriber-identifying information by pharmacies and similar entities, (2) disclosure of such information for marketing, and (3) use of such information for marketing by pharmaceutical manufacturers.
- The law permitted the same information to be used for various non-marketing purposes, including health care research, law enforcement, and other governmental uses.
- Vermont justified the law as protecting medical privacy and reducing the influence of pharmaceutical marketing on prescribing decisions and costs.

## Issues

1. Whether restrictions on the sale, disclosure, and use of prescriber-identifying information for pharmaceutical marketing regulate protected speech under the First Amendment.
2. Whether Vermont’s law imposes content-based and speaker-based burdens on expression triggering heightened scrutiny.
3. Whether Vermont’s asserted interests in medical privacy and public health/cost control justify the restrictions under the applicable First Amendment standard.

## Decision

- The Supreme Court affirmed the judgment striking down the statute.
- The Court held the law imposed content- and speaker-based burdens on protected expression and therefore was subject to heightened judicial scrutiny.
- The Court concluded Vermont’s asserted interests did not justify the restrictions and that the law failed even under the less demanding intermediate scrutiny typically applied to commercial speech.
- Justice Breyer, joined by Justices Ginsburg and Kagan, dissented, viewing the law as permissible regulation of commercial practice with only incidental effects on speech.

## Legal Principles

- The creation and dissemination of information, including commercial data, are speech within the meaning of the First Amendment.
- Content-based and speaker-based restrictions on expression are presumptively suspect; commercial speech is not exempt from this rule.
- A state may not restrict truthful, non-misleading information to weaken one side’s ability to persuade or to tilt debate toward the state’s preferred outcome.
- A privacy rationale is undermined where the state permits widespread disclosure and use of the same information for favored non-marketing purposes; tailoring must be materially connected to the asserted privacy interest.
- Under heightened scrutiny (including the Central Hudson framework), the government must show substantial interests, direct advancement, and a fit that is not more extensive than necessary; a selective burden on disfavored speakers and messages is unlikely to satisfy that requirement.

## Conclusion

The Court held that Vermont’s selective ban on the sale, disclosure, and use of prescriber-identifying information for pharmaceutical marketing was a content- and speaker-based restriction on protected speech that failed heightened First Amendment scrutiny.


Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)