Law prof Ruthann Robson comments on the Supreme Court’s decision in IMS v. Sorrell:
As expected from the oral argument in April, the Court’s opinion today in IMS v. Sorrell finds Vermont’s statute prohibiting the practices that allow pharmaceutical detailing to be unconstitutional.
The opinions can be said to answer this query: When is a commercial speech regulation not a commercial speech regulation?
Justice Kennedy, writing for the Court and joined by five other Justices, found the Vermont statute not to be a commercial speech regulation. Instead, the Court applied heightened scrutiny because:
On its face, Vermont’s law enacts content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints.
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