High Court Agrees to Review Vermont Prescriber Privacy Law

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

The U.S. Supreme Court has agreed to decide whether the First Amendment prohibits the enforcement of a Vermont law that restricts access to information in prescription drug records.

At issue is a decision of the U.S. Court of Appeals in New York City (CCH Privacy Law in Marketing ¶60,558) holding that a Vermont statute regulating the collection and use of data identifying health care providers’ prescribing patterns impermissibly restricted commercial speech.

The statute banned the sale, transmission or use of prescriber-identifiable data for marketing or promoting a prescription drug unless the prescriber gave consent.

The appellate court determined that Vermont had failed to show that the statute directly and materially advanced the substantial state interests of lowering health care costs and protecting public health. The law had been challenged by three data-mining companies.

Similar laws in New Hampshire and Maine have been upheld by the U.S. Court of Appeals in Boston (CCH Privacy Law in Marketing ¶60,270 and CCH Privacy Law in Marketing ¶60,527, respectively).

The petition is Sorrell v. IMS Health Inc., Docket 10-779, cert granted January 7, 2011.