(BOSTON, MA) – “Today, the Supreme Court struck down an important Vermont law that sought to protect patients and doctors from aggressive drug industry marketing. The law banned drug companies from using information on physicians’ past prescribing decisions in their promotion and marketing of new drug products. The aggressive marketing and promotion of costly prescription drugs over more affordable, and often safer alternatives is of increasing concern to consumers, health plans, and state programs as they struggle with increasing costs of health care and support quality care.

“The law was a reasonable state regulation of commercial activity to further public health. It did not ban the use of prescription drug data for non-marketing purposes, such as by researchers or private and public health plans. Yet, an increasingly conservative, industry-oriented Court struck down the Vermont law as an impermissible restriction of free speech under the First Amendment. Legal expert American University Professor. Sean Fiil-Flynn notes: ‘The First Amendment’s interests in promoting a marketplace of ideas and facilitating democratic decision making through the free flow of public information are not furthered by protecting from regulation the private commercial trade of private information in medical records.’

“Our state and federal governments must be allowed the tools to promote evidence-based care, and to insulate doctors and nurses from sophisticated marketing that interferes with the prescriber-patient relationship. Vermont can, however, go back to the drawing board to reformulate their law, since the decision does allow a path for another approach that may survive this type of industry challenge. 

“On behalf of state legislators concerned with rising drug prices, State Representative Sharon Treat, Executive Director of the National Legislative Association on Prescription Drug Prices (NLARx), notes that ‘The decision is a huge disappointment to legislators and other policymakers who have sought to protect the confidentiality of private prescription records.’ Treat added, ‘The information Vermont tried to protect comes from private medical records.  It is being used to profile doctors to help drug companies in their marketing efforts.’

“In the long-term, extending First Amendment protections to the commercial sale of sensitive health information may pose ever greater risks to patients’ privacy.  The decision also has far reaching implications for other efforts by government to protect consumers from advertising and the use of private data, and companies have already signaled that they may challenge the new graphic warnings on cigarette packs and other important data privacy regulations.”


About Community Catalyst
Community Catalyst is a national non-profit consumer advocacy organization dedicated to quality affordable health care for all.  Since 1997, Community Catalyst has been working to build the consumer and community leadership required to transform the American health system. With the belief that this transformation will happen when consumers are fully engaged and have an organized voice, Community Catalyst works in partnership with national, state and local consumer organizations, policymakers, and foundations, providing leadership and support to change the health care system so it serves everyone – especially vulnerable members of society.  For more information, visit www.communitycatalyst.org.