SORRELL v. IMS HEALTH
In 2007, the Vermont legislature passed a law that banned the sale, transmission or use of prescriber-identifiable data (''PI data'') for marketing or promoting a prescription drug without the consent of the prescriber. The law also prohibited the sale, license or exchange for value of PI data for marketing or promoting a prescription drug.
Three companies -- IMS Health, Verispan and Source Healthcare Analytics, a unit of Dutch publisher Wolters Kluwer -- that collect and sell such data and by a trade group for pharmaceutical manufacturers challenged the law. The U.S. Court of Appeals for the 2nd Circuit struck down the measure, holding that it violated the First Amendment because it restricts the speech rights of data miners without directly advancing legitimate state interests.
- Brief of Yale Rudd Center for Food Policy & Obesity, Public Health Law & Policy, Berkeley Media Studies Group, Public Health Law Center, Center for Digital Democracy, And Campaign for a Commercial-free Childhood, as Amici Curiae In Support of Petitioners
- Brief of Amicus Curiae New England Legal Foundation In Support of Respondent Ims Health
- Brief of Amicus Curiae Techfreedom In Support of Respondents
- Brief for the States of Illinois, Alabama, Arizona, Arkansas, California, Colorado, Delaware, Georgia, Hawaii, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Minnesota, Mississippi, Montana, Nevada, New Hampshire, New Mexico, New York, North
- Brief of Amici Curiae Bloomberg L.p., the Mcgraw-hill Companies, Inc., Hearst Corporation, Propublica, the Associated Press, the Reporters Committee for Freedom of the Press And the Texas Tribune In Support of Respondents
- Brief of Academic Research Scientists as Amici Curiae In Support of Respondents
- Brief Amicus Curiae of American Business Media; the Coalition for Healthcare Communication; the Consumer Data Industry Association; Corelogic; the National Association of Professional Background Screeners; And Reed Elsevier Inc. In Support of Respondent
- Brief of Council of American Survey Research Organizations, Inc. as Amicus Curiae Supporting the Brief of Respondents Ims Health
- Brief of Amici Curiae Louis W. Sullivan, M.d., Tommy G. Thompson, And the Healthcare Leadership Council In Support of Respondents
- Brief of Amici Curiae Massachusetts Biotechnology Council, Biotechnology Industry Organization Et Al. In Support of Respondents
- Brief of the National Association of Chain Drug Stores And American Society for Automation In Pharmacy as Amici Curiae In Support of Respondents
Does a Vermont state statute banning the sale, transmission or use of prescriber-identifiable data, absent prescriber consent, unconstitutionally restrict the free speech rights of pharmaceutical research companies, manufacturers and others to use that data?
Legal provision: first amendment
Yes. The Supreme Court affirmed the lower court order in an opinion by Justice Anthony Kennedy. "Vermont's statute, which imposes content- and speaker-based burdens on protected expression, is subject to heightened judicial scrutiny," Kennedy wrote. Meanwhile, Justice Stephen Breyer dissented, joined by Justices Ruth Bader Ginsburg and Elena Kagan. "The First Amendment does not require courts to apply a special 'heightened' standard of review when reviewing such an effort," Breyer wrote. "And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech."
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
WILLIAM H. SORRELL, ATTORNEY GENERAL OF
VERMONT, ET AL., PETITIONERS v.
IMS HEALTH INC. ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2011]
JUSTICE KENNEDY delivered the opinion of the Court.
Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, §4631 (Supp. 2010). Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing purposes, or used for marketing by pharmaceutical manufacturers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that marketing will lead to prescription decisions not in the best interests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.
A Pharmaceutical manufacturers promote their drugs to doctors through a process called “detailing.” This often involves a scheduled visit to a doctor’s office to persuade the doctor to prescribe a particular pharmaceutical. Detailers bring drug samples as well as medical studies that explain the “details” and potential advantages of various prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and purchasing preferences of their clientele, and pharmaceutical salespersons are no exception. Knowledge of a physician’s prescription practices—called “prescriber-identifying information”—enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug’s patent expires, less expensive bioequivalent generic alternatives are manufactured and sold.
Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when processing prescriptions. See 21 U. S. C. §353(b); see also Vt. Bd. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their marketing tactics and increase sales.
In 2007, Vermont enacted the Prescription Confidentiality Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is §4631(d). “A health insurer, a self-insured employer, an electronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriberidentifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents . . . . Pharmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents . . . .” The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insurers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar entities from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provision’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriberidentifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. §4631(f).
Separate statutory provisions elaborate the scope of the prohibitions set out in §4631(d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescription drug.” §4631(b)(5). Section 4631(c)(1) further provides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying information to be used for the purposes” identified in §4631(d). Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriberidentifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies, or preferred drug lists; for “care management educational communications provided to” patients on such matters as “treatment options”; for law enforcement operations; and for purposes “otherwise provided by law.” §4631(e).
Act 80 also authorized funds for an “evidence-based prescription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” §4622(a)(1). An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon expire. §4622(a)(2). Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 211; see also IMS Health Inc. v. Ayotte, 550 F. 3d 42, 91 (CA1 2008) (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufacturers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may supply the prescriber-identifying information used in these programs. See App. 313; id., at 375 (“[W]e use the data given to us by the State of Pennsylvania . . . to figure out which physicians to talk to”); see also id., at 427–429 (Director of the Office of Vermont Health Access explaining that the office collects prescriber-identifying information but “does not at this point in time have a counterdetailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative treatment options. The Vermont Legislature, however, later repealed that provision. 2008 Vt. Laws No. 89, §3.
Act 80 was accompanied by legislative findings. Vt. Acts No. 80, §1. Vermont found, for example, that the “goals of marketing programs are often in conflict with the goals of the state” and that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.” §§1(3), (4). Detailing, in the legislature’s view, caused doctors to make decisions based on “incomplete and biased information.” §1(4). Because they “are unable to take the time to research the quickly changing pharmaceutical market,” Vermont doctors “rely on information provided by pharmaceutical representatives.” §1(13). The legislature further found that detailing increases the cost of health care and health insurance, §1(15); encourages hasty and excessive reliance on brand-name drugs, before the profession has observed their effectiveness as compared with older and less expensive generic alternatives, §1(7); and fosters disruptive and repeated marketing visits tantamount to harassment, §§1(27)–(28). The legislative findings further noted that use of prescriber-identifying information “increase[s] the effect of detailing programs” by allowing detailers to target their visits to particular doctors. §§1(23)–(26). Use of prescriber-identifying data also helps detailers shape their messages by “tailoring” their “presentations to individual prescriber styles, preferences, and attitudes.” §1(25).
The present case involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce brand-name drugs. These entities are the respondents here. Contending that §4631(d) violates their First Amendment rights as incorporated by the Fourteenth Amendment, the respondents sought declaratory and injunctive relief against the petitioners, the Attorney General and other officials of the State of Vermont.
After a bench trial, the United States District Court for the District of Vermont denied relief. 631 F. Supp. 2d 434 (2009). The District Court found that “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry” and that, because detailing unpatented generic drugs is not “cost-effective,” pharmaceutical sales representatives “detail only branded drugs.” Id., at 451, 442. As the District Court further concluded, “the Legislature’s determination that [prescriberidentifying] data is an effective marketing tool that enables detailers to increase sales of new drugs is supported in the record.” Id., at 451. The United States Court of Appeals for the Second Circuit reversed and remanded. It held that §4631(d) violates the First Amendment by burdening the speech of pharmaceutical marketers and data miners without an adequate justification. 630 F. 3d 263. Judge Livingston dissented.
The decision of the Second Circuit is in conflict with decisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health Inc. v. Mills, 616 F. 3d 7 (CA1 2010) (Maine); Ayotte, supra (New Hampshire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 562 U. S. __ (2011).
The beginning point is the text of §4631(d). In the proceedings below, Vermont stated that the first sentence of §4631(d) prohibits pharmacies and other regulated entities from selling or disseminating prescriberidentifying information for marketing. The information, in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F. 3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of §4631(d)—namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying information for any purpose, subject to the statutory exceptions set out at §4631(e). See Tr. of Oral Arg. 19–20. It might be argued that the State’s newfound interpretation comes too late in the day. See Sprietsma v. Mercury Marine, 537 U. S. 51, 56, n. 4 (2002) (waiver); New Hampshire v. Maine, 532 U. S. 742, 749 (2001) (judicial estoppel). The respondents, the District Court, and the Court of Appeals were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law. See Houston v. Hill, 482 U. S. 451, 467–468, and n. 17 (1987); Zwickler v. Koota, 389 U. S. 241, 252 (1967).
In any event, §4631(d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of §4631(d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at §4631(e). Under that reading, pharmacies may sell the information to private or academic researchers, see §4631(e)(1), but not, for example, to pharmaceutical marketers. There is no dispute as to the remainder of §4631(d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manufacturers and detailers from using the information for marketing. The questions now are whether §4631(d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law.
On its face, Vermont’s law enacts content- and speakerbased 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,” §4631(e)(4), 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. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it appears that Vermont could supply academic organizations with prescriber-identifying information to use in countering the messages of brand-name pharmaceutical manufacturers and in promoting the prescription of generic drugs. But §4631(d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfavored speakers.
Any doubt that §4631(d) imposes an aimed, contentbased burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, at 451. Vermont’s law thus has the effect of preventing detailers—and only detailers—from communicating with physicians in an effective and informative manner. Cf. Edenfield v. Fane, 507 U. S. 761, 766 (1993) (explaining the “considerable value” of in-person solicitation). Formal legislative findings accompanying §4631(d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitutional,” a statute’s stated purposes may also be considered. United States v. O’Brien, 391 U. S. 367, 384 (1968). Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. No. 80, §1(3). The legislature designed §4631(d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Vermont’s law “goes even beyond mere content discrimination, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 505 U. S. 377, 391 (1992). Given the legislature’s expressed statement of purpose, it is apparent that §4631(d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint.
Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 418 (1993) (applying heightened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); id., at 429 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills . . . . Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 658 (1994) (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must satisfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 812 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 115 (1991) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575 (1983) (speaker-based financial burden).
The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989); see also Renton v. Playtime Theatres, Inc., 475 U. S. 41, 48 (1986) (explaining that “ ‘content-neutral’ speech regulations” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impending demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Ibid. Commercial speech is no exception. See Discovery Network, supra, at 429–430 (commercial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” Bates v. State Bar of Ariz., 433 U. S. 350, 364 (1977). That reality has great relevance in the fields of medicine and public health, where information can save lives.
The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regulation. It is true that restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech. That is why a ban on race-based hiring may require employers to remove “ ‘White Applicants Only’ ” signs, Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47, 62 (2006); why “an ordinance against outdoor fires” might forbid “burning a flag,” R. A. V., supra, at 385; and why antitrust laws can prohibit “agreements in restraint of trade,” Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949).
But §4631(d) imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See supra, at 8–11. While the burdened speech results from an economic motive, so too does a great deal of vital expression. See Bigelow v. Virginia, 421 U. S. 809, 818 (1975); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); see also United States v. United Foods, Inc., 533 U. S. 405, 410–411 (2001) (applying “First Amendment scrutiny” where speech effects were not incidental and noting that “those whose business and livelihood depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers. The Constitution “does not enact Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment.
Vermont further argues that §4631(d) regulates not speech but simply access to information. Prescriberidentifying information was generated in compliance with a legal mandate, the State argues, and so could be considered a kind of governmental information. This argument finds some support in Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32 (1999), where the Court held that a plaintiff could not raise a facial challenge to a content-based restriction on access to governmentheld information. Because no private party faced a threat of legal punishment, the Court characterized the law at issue as “nothing more than a governmental denial of access to information in its possession.” Id., at 40. Under those circumstances the special reasons for permitting First Amendment plaintiffs to invoke the rights of others did not apply. Id., at 38–39. Having found that the plaintiff could not raise a facial challenge, the Court remanded for consideration of an as-applied challenge. Id., at 41. United Reporting is thus a case about the availability of facial challenges. The Court did not rule on the merits of any First Amendment claim.
United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not addressed, in United Reporting. Here, unlike in United Reporting, we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” Id., at 40. The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “restraints on the way in which the information might be used” or disseminated. Seattle Times Co. v. Rhinehart, 467 U. S. 20, 32 (1984); see also Bartnicki v. Vopper, 532 U. S. 514, 527 (2001); Florida Star v. B. J. F., 491 U. S. 524 (1989); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam). In Seattle Times, this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true that the respondents here, unlike the newspaper in Seattle Times, do not themselves possess information whose disclosure has been curtailed. That information, however, is in the hands of pharmacies and other private entities. There is no question that the “threat of prosecution . . . hangs over their heads.” United Reporting, 528 U. S., at 41. For that reason United Reporting does not bar respondents’ facial challenge.
United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempt[ed] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. Id., at 40. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invoking the rights of others through a facial challenge. Here, by contrast, the respondents claim—with good reason— that §4631(d) burdens their own speech. That argument finds support in the separate writings in United Reporting, which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the expression of potential recipients and so transgress the First Amendment. See id., at 42 (SCALIA, J., concurring) (suggesting that “a restriction upon access that allows access to the press . . . but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); id., at 43 (GINSBURG, J., concurring) (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); id., at 46 (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes a content- and speakerbased burden on respondents’ own speech. That consideration provides a separate basis for distinguishing United Reporting and requires heightened judicial scrutiny.
The State also contends that heightened judicial scrutiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has characterized prescriber-identifying information as a mere “commodity” with no greater entitlement to First Amendment protection than “beef jerky.” Ayotte, 550 F. 3d, at 52–53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying information is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F. 3d, at 271–272 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and alteration omitted)); 631 F. Supp. 2d, at 445 (“A restriction on disclosure is a regulation of speech, and the ‘sale’ of [information] is simply disclosure for profit”).
This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e.g., Bartnicki, supra, at 527 (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omitted)); Rubin v. Coors Brewing Co., 514 U. S. 476, 481 (1995) (“information on beer labels” is speech); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes.
The State asks for an exception to the rule that information is speech, but there is no need to consider that request in this case. The State has imposed content- and speaker-based restrictions on the availability and use of prescriber-identifying information. So long as they do not engage in marketing, many speakers can obtain and use the information. But detailers cannot. Vermont’s statute could be compared with a law prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star, 460 U. S. 575. Like that hypothetical law, §4631(d) imposes a speaker- and content-based burden on protected expression, and that circumstance is sufficient to justify application of heightened scrutiny. As a consequence, this case can be resolved even assuming, as the State argues, that prescriber-identifying information is a mere commodity.
B In the ordinary case it is all but dispositive to conclude that a law is content-based and, in practice, viewpointdiscriminatory. See R. A. V., 505 U. S., at 382 (“Contentbased regulations are presumptively invalid”); id., at 391– 392. The State argues that a different analysis applies here because, assuming §4631(d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, e.g., Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U. S. 173, 184 (1999). For the same reason there is no need to determine whether all speech hampered by §4631(d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 474 (1989) (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must . . . be classified as noncommercial”).
Under a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. Thompson v. Western States Medical Center, 535 U. S. 357, 373 (2002). To sustain the targeted, content-based burden §4631(d) imposes on protected expression, the State must show at least that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. See Fox, supra, at 480–481; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557, 566 (1980). There must be a “fit between the legislature’s ends and the means chosen to accomplish those ends.” Fox, supra, at 480 (internal quotation marks omitted). As in other contexts, these standards ensure not only that the State’s interests are proportional to the resulting burdens placed on speech but also that the law does not seek to suppress a disfavored message. See Turner Broadcasting, 512 U. S., at 662–663.
The State’s asserted justifications for §4631(d) come under two general headings. First, the State contends that its law is necessary to protect medical privacy, including physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Second, the State argues that §4631(d) is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny.
Vermont argues that its physicians have a “reasonable expectation” that their prescriber-identifying information “will not be used for purposes other than . . . filling and processing” prescriptions. See 2007 Vt. Laws No. 80, §1(29). It may be assumed that, for many reasons, physicians have an interest in keeping their prescription decisions confidential. But §4631(d) is not drawn to serve that interest. Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any reason save one: They must not allow the information to be used for marketing. Exceptions further allow pharmacies to sell prescriber-identifying information for certain purposes, including “health care research.” §4631(e). And the measure permits insurers, researchers, journalists, the State itself, and others to use the information. See §4631(d); cf. App. 370–372; id., at 211. All but conceding that §4631(d) does not in itself advance confidentiality interests, the State suggests that other laws might impose separate bars on the disclosure of prescriber-identifying information. See Vt. Bd. of Pharmacy Admin. Rule 20.1. But the potential effectiveness of other measures cannot justify the distinctive set of prohibitions and sanctions imposed by §4631(d).
Perhaps the State could have addressed physician confidentiality through “a more coherent policy.” Greater New Orleans Broadcasting, supra, at 195; see also Discovery Network, 507 U. S., at 428. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health Insurance Portability and Accountability Act of 1996, 42 U. S. C. §1320d–2; 45 CFR pts. 160 and 164 (2010). A statute of that type would present quite a different case than the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissible uses, the State’s asserted interest in physician confidentiality does not justify the burden that §4631(d) places on protected expression.
The State points out that it allows doctors to forgo the advantages of §4631(d) by consenting to the sale, disclosure, and use of their prescriber-identifying information. See §4631(c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See Rowan v. Post Office Dept., 397 U. S. 728 (1970); cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 72 (1983). But that principle is inapposite here. Vermont has given its doctors a contrived choice: Either consent, which will allow your prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow your information to be used by those speakers whose message the State supports. Section 4631(d) may offer a limited degree of privacy, but only on terms favorable to the speech the State prefers. Cf. Rowan, supra, at 734, 737, 739, n. 6 (sustaining a law that allowed private parties to make “unfettered,” “unlimited,” and “unreviewable” choices regarding their own privacy). This is not to say that all privacy measures must avoid content-based rules. Here, however, the State has conditioned privacy on acceptance of a content-based rule that is not drawn to serve the State’s asserted interest. To obtain the limited privacy allowed by §4631(d), Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers.
Respondents suggest that a further defect of §4631(d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save §4631(d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance legitimate interests or too broad to protect speech. As already explained, §4631(d) permits extensive use of prescriber-identifying information and so does not advance the State’s asserted interest in physician confidentiality. The limited range of available privacy options instead reflects the State’s impermissible purpose to burden disfavored speech. Vermont’s argument accordingly fails, even if the availability and scope of private election might be relevant in other contexts, as when the statute’s design is unrelated to any purpose to advance a preferred message.
The State also contends that §4631(d) protects doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80, §1(28). “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceutical sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and harassed.” §1(20). It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by pharmaceutical marketers can sustain a broad contentbased rule like §4631(d). Many are those who must endure speech they do not like, but that is a necessary cost of freedom. See Erznoznik v. Jacksonville, 422 U. S. 205, 210–211 (1975); Cohen v. California, 403 U. S. 15, 21 (1971). In any event the State offers no explanation why remedies other than content-based rules would be inadequate. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 503 (1996) (opinion of Stevens, J.). Physicians can, and often do, simply decline to meet with detailers, including detailers who use prescriber-identifying information. See, e.g., App. 180, 333–334. Doctors who wish to forgo detailing altogether are free to give “No Solicitation” or “No Detailing” instructions to their office managers or to receptionists at their places of work. Personal privacy even in one’s own home receives “ample protection” from the “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150, 168 (2002); see also Bolger, supra, at 72. A physician’s office is no more private and is entitled to no greater protection.
Vermont argues that detailers’ use of prescriberidentifying information undermines the doctor-patient relationship by allowing detailers to influence treatment decisions. According to the State, “unwanted pressure occurs” when doctors learn that their prescription decisions are being “monitored” by detailers. 2007 Vt. Laws No. 80, §1(27). Some physicians accuse detailers of “spying” or of engaging in “underhanded” conduct in order to “subvert” prescription decisions. App. 336, 380, 407–408; see also id., at 326–328. And Vermont claims that detailing makes people “anxious” about whether doctors have their patients’ best interests at heart. Id., at 327. But the State does not explain why detailers’ use of prescriberidentifying information is more likely to prompt these objections than many other uses permitted by §4631(d). In any event, this asserted interest is contrary to basic First Amendment principles. Speech remains protected even when it may “stir people to action,” “move them to tears,” or “inflict great pain.” Snyder v. Phelps, 562 U. S. ___, ___ (2011) (slip op., at 15). The more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment. If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it. Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (per curiam).
The State contends that §4631(d) advances important public policy goals by lowering the costs of medical services and promoting public health. If prescriberidentifying information were available for use by detailers, the State contends, then detailing would be effective in promoting brand-name drugs that are more expensive and less safe than generic alternatives. This logic is set out at length in the legislative findings accompanying §4631(d). Yet at oral argument here, the State declined to acknowledge that §4631(d)’s objective purpose and practical effect were to inhibit detailing and alter doctors’ prescription decisions. See Tr. of Oral Arg. 5–6. The State’s reluctance to embrace its own legislature’s rationale reflects the vulnerability of its position.
While Vermont’s stated policy goals may be proper, §4631(d) does not advance them in a permissible way. As the Court of Appeals noted, the “state’s own explanation of how” §4631(d) “advances its interests cannot be said to be direct.” 630 F. 3d, at 277. The State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers—that is, by diminishing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truthful information” cannot justify content-based burdens on speech. Thompson, 535 U. S., at 374; see also Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 769–770 (1976). “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 Liquormart, supra, at 503 (opinion of Stevens, J.); see also Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 97 (1977). These precepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers. Edenfield, 507 U. S., at 775.
As Vermont’s legislative findings acknowledge, the premise of §4631(d) is that the force of speech can justify the government’s attempts to stifle it. Indeed the State defends the law by insisting that “pharmaceutical marketing has a strong influence on doctors’ prescribing practices.” Brief for Petitioners 49–50. This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.
The defect in Vermont’s law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view targeted detailing based on prescriber-identifying information as “very helpful” because it allows detailers to shape their messages to each doctor’s practice. App. 274; see also id., at 181, 218, 271–272. Even the United States, which appeared here in support of Vermont, took care to dispute the State’s “unwarranted view that the dangers of [n]ew drugs outweigh their benefits to patients.” Brief for United States as Amicus Curiae 24, n. 4. There are divergent views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.” App. 279. There are similar sayings in law, including that “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia Bd., 425 U. S., at 770. The choice “between the dangers of suppressing information, and the dangers of its misuse if it is freely available” is one that “the First Amendment makes for us.” Ibid.
Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The State can express that view through its own speech. See Linmark, 431 U. S., at 97; cf. §4622(a)(1) (establishing a prescription drug educational program). But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction. “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented.” Edenfield, supra, at 767.
It is true that content-based restrictions on protected expression are sometimes permissible, and that principle applies to commercial speech. Indeed the government’s legitimate interest in protecting consumers from “commercial harms” explains “why commercial speech can be subject to greater governmental regulation than noncommercial speech.” Discovery Network, 507 U. S., at 426; see also 44 Liquormart, 517 U. S., 502 (opinion of Stevens, J.). The Court has noted, for example, that “a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud . . . is in its view greater there.” R. A. V., 505 U. S., at 388–389 (citing Virginia Bd., supra, at 771–772). Here, however, Vermont has not shown that its law has a neutral justification.
The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents. See Thompson, 535 U. S., at 373. Nor does the State argue that the provision challenged here will prevent false or misleading speech. Cf. post, at 10–11 (BREYER, J., dissenting) (collecting regulations that the government might defend on this ground). The State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion. See Bolger, 463 U. S., at 69; Thompson, supra, at 376.
* * *
The capacity of technology to find and publish personal information, including records required by the government, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate.
If Vermont’s statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the information’s use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.
When it enacted §4631(d), the Vermont Legislature found that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brandname companies invest in expensive pharmaceutical marketing campaigns to doctors.” 2007 Vt. Laws No. 80, §1(4). “The goals of marketing programs,” the legislature said, “are often in conflict with the goals of the state.” §1(3). The text of §4631(d), associated legislative findings, and the record developed in the District Court establish that Vermont enacted its law for this end. The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do.
The judgment of the Court of Appeals is affirmed. It is so ordered.
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
WILLIAM H. SORRELL, ATTORNEY GENERAL OF
VERMONT, ET AL., PETITIONERS v.
IMS HEALTH INC. ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 23, 2011]
JUSTICE BREYER, with whom JUSTICE GINSBURG and JUSTICE KAGAN join, dissenting.
The Vermont statute before us adversely affects expression in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional.
The Vermont statute before us says pharmacies and certain other entities “shall not  sell . . . regulated records containing prescriber-identifiable information, nor  permit the use of [such] records . . . for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, §4631(d) (Supp. 2010). It also says that “ [p]harmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” Ibid. For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result.
In Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457 (1997), this Court considered the First Amendment’s application to federal agricultural commodity mar-keting regulations that required growers of fruit to make compulsory contributions to pay for collective advertising. The Court reviewed the lawfulness of the regulation’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regulation.” Id., at 469.
In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regulatory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in Glickman. The far stricter, specially “heightened” First Amendment standards that the majority would apply to this instance of commercial regulation are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15.
Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifications differ depending upon context, this Court has distinguished for First Amendment purposes among different contexts in which speech takes place. See, e.g., Snyder v. Phelps, 562 U. S. ___, ___–___ (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, e.g., “core” political speech, while imposing looser constraints when the government seeks to restrict, e.g., commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory program. Compare Boos v. Barry, 485 U. S. 312, 321 (1988) (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980) (commercial speech), Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 (1968) (government employees), and Glickman, supra (economic regulation).
These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); see Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will.
At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida Bar v. Went For It, Inc., 515 U. S. 618, 623 (1995) (“We have always been careful to distinguish commercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.
Thus this Court has recognized that commercial speech including advertising has an “informational function” and is not “valueless in the marketplace of ideas.” Central Hudson, supra, at 563; Bigelow v. Virginia, 421 U. S. 809, 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Hudson, supra, at 564. Moreover, the Court has found that “sales practices” that are “misleading, deceptive, or aggressive” lack the protection of even this “intermediate” standard. 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 501 (1996) (opinion of Stevens, J.); see also Central Hudson, supra, at 563; Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 455–456 (1978) (quoting Virginia Bd. of Pharmacy, supra, at 771, n. 24; emphasis added).
The Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See Glickman, supra, at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of the remedy provided.” New State Ice Co. v. Liebmann, 285 U. S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it”); United States v. Carolene Products Co., 304 U. S. 144, 152 (1938) (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”).
To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory programs can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort or undermine legitimate legislative objectives. See Glickman, 521 U. S., at 476 (“Doubts concerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they disagree with does not “justify reliance on the First Amendment as a basis for reviewing economic regulations”). Cf. Johanns v. Livestock Marketing Assn., 544 U. S. 550, 560– 562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Foods, Inc., 533 U. S. 405, 411 (2001) (applying greater scrutiny where compelled speech was not “ancillary to a more comprehensive program restricting marketing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what then-Justice Rehnquist, dissenting in Central Hudson, described as a “retur[n] to the bygone era of Lochner v. New York, 198 U. S. 45 (1905), in which it was common practice for this Court to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to implement its considered policies.” 447 U. S., at 589.
There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” Glickman, 521 U. S., at 469. For one thing, Vermont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. id., at 469–470. (And I here assume that Central Hudson might otherwise apply. See Part III, infra.)
For another thing, the same First Amendment standards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Government’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.)
Further, the statute’s requirements form part of a traditional, comprehensive regulatory regime. Cf. United Foods, supra, at 411. The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, 34 Stat. 768. Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs are both “safe” and “effective.” 21 U. S. C. §§355(b)(1), 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. §352(f)(2); 21 CFR pts. 201–203 (2010).
Finally, Vermont’s statute is directed toward information that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U. S. C. §353(b). Vermont regulates the qualifications, the fitness, and the practices of pharmacists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, §§2041(a), 2022(14) (Supp. 2010); Vt. Bd. of Pharmacy Admin. Rules (Pharmacy Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin).
Regulators will often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new customers. See 15 U. S. C. §1681b (2006 ed. and Supp. III); cf. Trans Union Corp. v. FTC, 245 F. 3d 809, reh’g denied, 267 F. 3d 1138 (CADC 2001). Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See 45 CFR §164.508(a)(3) (2010). Or, speaking hypothetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid sales of the data to appliance manufacturers seeking to sell gas stoves.
Such regulatory actions are subject to judicial review, e.g., for compliance with applicable statutes. And they would normally be subject to review under the Administrative Procedure Act to make certain they are not “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A) (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional constitutional concerns under the First Amendment. But cf. Trans Union LLC v. FTC, 536 U. S. 915 (2002) (KENNEDY, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothetical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “intermediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message).
Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gathered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U. S. 32 (1999) (no heightened scrutiny); compare Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 426 (1993) (“[C]ommercial speech can be subject to greater governmental regulation than noncommercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech).
The Court (suggesting a standard yet stricter than Central Hudson) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante, at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24.
But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, e.g., Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U. S. 1000 (1972) (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable.
Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of Pharmacy, 425 U. S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, . . . it must be distinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, e.g., Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institutions. See 12 CFR pts. 226, 230 (2011). And the FDA oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regulatory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue).
Nor, in the context of a regulatory program, is it unusual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manufacturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of industrial equipment. See, e.g., 16 CFR pt. 305 (2011) (prescribing labeling requirements for certain home appliances); Nev. Admin. Code §§704.804, 704.808 (2010) (requiring utilities to provide consumers with information on conservation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and excess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Orders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see 36 Fed. Reg. 12058 (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential purchasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341, 350–351 (2001) (discussing effect of similar regulations in respect to medical devices); see also Proposed Rule, Revised Effectiveness Determination; Sunscreen Drug Products for Over-the-Counter Human Use, 76 Fed. Reg. 35672 (2011) (proposing to prohibit marketing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”).
If the Court means to create constitutional barriers to regulatory rules that might affect the content of a commercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interference with widely accepted regulatory activity. Cf., e.g., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect certain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines.
The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manufacturers. Ante, at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, e.g., Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, e.g., Exec. Order No. 12866, 58 Fed. Reg. 51735 (1993) (specifying how to identify regulatory priorities and requiring agencies to prepare agendas). The related statutes, regulations, programs, and initiatives almost always reflect a point of view, for example, of the Congress and the administration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Government and the firms may disagree. Section 2 of the Sherman Act, 15 U. S. C. §2, for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists.
In short, the case law in this area reflects the need to ensure that the First Amendment protects the “marketplace of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hampering the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often involve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk.
Moreover, given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists. See Lochner v. New York, 198 U. S. 45, 75–76 (1905) (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory interests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Central Hudson, 447 U. S., at 589 (Rehnquist, J., dissenting); cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co., 310 U. S. 573, 580–581 (1940) (“A controversy like this always calls for fresh reminder that courts must not substitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”).
Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point.
This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbitrary, capricious, [or] an abuse of discretion.” 5 U. S. C. §706(2)(A). And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the unforgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would significantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case.
Turning to the constitutional merits, I believe Vermont’s statute survives application of Central Hudson’s “intermediate” commercial speech standard as well as any more limited “economic regulation” test. A
The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjustified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record contains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. Burson v. Freeman, 504 U. S. 191, 207 (1992) (plurality opinion) (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); Bates v. State Bar of Ariz., 433 U. S. 350, 380 (1977) (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”).
The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Pharmacy Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthorized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) (emphasis added); see also Reply Brief for Petitioners 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, §4631(e)(1) (pharmacy reimbursement, patient care management, health care research); §4631(e)(2) (drug dispensing); §4631(e)(3) (communications between prescriber and pharmacy); §4631(e)(4) (information to patients); §§4631(e)(5)–(6) (as otherwise provided by state or federal law). Cf. Trans Union Corp., 245 F. 3d, at 819 (rejecting an underinclusiveness challenge because an exception to the Fair Credit Reporting Act concerned “ ‘exactly the sort of thing the Act seeks to promote’ ” (quoting Trans Union Corp. v. FTC, 81 F. 3d 228, 234 (CADC 1996)).
Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speakers.” Ante, at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creating individualized messages that would help them sell their drugs more effectively, but (2) permits “counterdetailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this consequence would significantly increase the statute’s negative impact upon commercial speech. But cf. 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii) (FDA’s “fair balance” requirement); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont.
The majority points out, ante, at 4, that Act 80, of which §4631 was a part, also created an “evidence-based prescription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescription drugs” to health professionals responsible for prescribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, §4622(a)(1). See generally §§4621–4622. But that program does not make use of prescriber-identifying data. Reply Brief for Petitioners 11.
The majority cites testimony by two witnesses in support of its statement that “States themselves may supply the prescriber-identifying information used in [counterdetailing] programs.” Ante, at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriberidentifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. Id., at 313. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Internet materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort.
The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The withholding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. B
The legitimate state interests that the statute serves are “substantial.” Central Hudson, 447 U. S., at 564. Vermont enacted its statute “to advance the state’s interest in protecting the public health of Vermonters, protecting the privacy of prescribers and prescribing information, and to ensure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” §4631(a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 24.
The protection of public health falls within the traditional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U. S., at 501 (opinion of Stevens, J.); Central Hudson, supra, at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U. S. 749, 762–771 (1989); see also Solove, A Taxonomy of Privacy, 154 U. Pa. L. Rev. 477, 520–522 (2006); cf. NASA v. Nelson, 562 U. S. ___, ___–___ (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure).
At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have everything to do with general information that drug manufacturers likely possess. They have little, if anything, to do with the name or prior prescription practices of the particular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by diverting attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests.
Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to highlight information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, id., at A–4235 (one former detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/healthcare-eli-lilly-pfizer-ama); Testimony of Paul Harrington (May 3, 2007), id., at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), id., at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, id., at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); id., at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence).
These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Vermont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR §§202.1(e)(1), 202.1(e)(5)(ii). No one has yet suggested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently?
The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, e.g., Pharmacy Rule 8.7(c) (“Prescription and other patient health care information shall be secure from access by the public, and the information shall be kept confidential”); Pharmacy Rule 20.1(i) (forbidding disclosure of patient or prescriber information to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, e.g., ibid. (identifying “authorized persons”); Vt. Stat. Ann., Tit. 18, §4631(e); App. 248, 255 (indicating that prescriberidentifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See supra, at 15.
Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confidential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §§4631(c)–(d). For purposes of Central Hudson, this would seem sufficiently to show that the statute serves a meaningful interest in increasing the protection given to prescriber privacy. See Fox, 492 U. S., at 480 (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United States v. Edge Broadcasting Co., 509 U. S. 418, 434 (1993) (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); Burson, 504 U. S., at 207 (plurality opinion).
The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central Hudson, 447 U. S., at 564. It says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 20. This fact, while true, is beside the point. Closing the office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative advantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physicians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbalanced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceutical Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharmaceutical Sales Representatives, 273 JAMA 1296 (1995). Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health.
The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 24–25; see also ante, at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See supra, at 14. Compare Vt. Stat. Ann., Tit. 18, §4631(e) with note following 42 U. S. C. §1320d–2, p. 1190, and 45 CFR §164.512 (uses and disclosures not requiring consent under the Health Insurance Portability and Accountability Act of 1996). Regardless, this alternative is not “a more limited restriction,” Central Hudson, supra, at 564 (emphasis added), for it would impose a greater, not a lesser, burden upon the dissemination of information.
Respondents’ alternatives are no more helpful. Respondents suggest that “Vermont can simply inform physicians that pharmaceutical companies . . . use prescription history information to communicate with doctors.” Brief for Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educating doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, e.g., Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy.
Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central Hudson, this statute is constitutional.
What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, §4631(d) (emphasis added). In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a declaratory judgment and injunction prohibiting the enforcement of this statute. See 28 U. S. C. §2201; App. 49– 128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, Inc. v. Genentech, Inc., 549 U. S. 118, 127 (2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 240–241 (1937)) (Article III does not permit courts to entertain such disputes).
The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriberidentifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs, and protect the privacy of prescribing physicians. There is no obvious equally effective, more limited alternative.
In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restrictions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, and entirely commercial. See supra, at 6–9.
The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See supra, at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, e.g., supra, at 7–8, 9–11. At worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central Hudson, 447 U. S., at 589 (Rehnquist, J., dissenting).
Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent.
ORAL ARGUMENT OF BRIDGET C. ASAY ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We will hear argument first this morning -- this morning in Case 10-779, William Sorrell, Attorney General of Vermont, v. IMS Health Incorporated.
Ms Asay: Mr. Chief Justice, and may it please the Court:
Under State and Federal law, doctors write prescriptions for their patients to allow them access to drugs that the government deems too dangerous for unrestricted sale.
Vermont's law allow doctors to decide whether this information that they're compelled to provide to pharmacies may be used in marketing that is directed at them.
Drug companies would certainly like to have this information for marketing, but they have no First Amendment right to demand it, just as they have no right to demand access to the doctor's tax returns, his patient files, or to their competitors' business records.
Vermont's law does not regulate the content of the marketing pitches and the advertising that drug companies provide about their products or their competitors' products.
It regulates access to this information that's created in a highly regulated regime of prescription drugs and in the context of the doctor-patient relationship.
Chief Justice John G. Roberts: The purpose -- the purpose is to prevent sales representatives from contacting particular physicians, right?
Ms Asay: I disagree, Your Honor.
The purpose of the statute is to let doctors decide whether sales representatives will have access to this inside information about what they have been prescribing to their patients.
And what -- what the record shows is that what drug companies do is track and monitor doctors very closely to watch when they switch drugs, to watch the trends by which they -- doctors prescribe, by gender, by age.
And all that information is used to target and to direct the marketing projects--
Justice Antonin Scalia: But they could use it for other purposes, right?
Ms Asay: --The pharmaceutical manufacturers?
Justice Antonin Scalia: Right.
Ms Asay: Under this statute they may use it for some limited purposes for clinical trials.
Justice Antonin Scalia: So what the Chief Justice suggested is right, that the purpose is to stop them from using it in order to market their drugs?
Ms Asay: The purpose is to allow doctors to decide whether the--
Justice Antonin Scalia: That's right.
Ms Asay: --the information should be available.
Justice Antonin Scalia: Well, that's right, but that -- that is an impediment to their using it for the marketing of drugs.
You're -- you're placing that impediment on it.
Isn't that the obvious purpose of it?
I mean, it doesn't necessarily make it bad, but -- but let's not quibble over what the purpose is.
Ms Asay: As with any information that the -- that might inform a marketing campaign, not having the information may be -- make their marketing less effective or make it different.
Justice Antonin Scalia: That's the purpose.
That's the purpose of it, to prevent them from using this information to market their drugs.
Ms Asay: Again, Your Honor, the purpose is to allow doctors to make the decision, and doctors may want to allow its use or not allow its use.
But the law--
Justice Antonin Scalia: But it's only for that use that you interpose the requirement that the doctor consent.
For all other uses you don't require the doctor's consent, right?
Ms Asay: --The only -- the consent requirement in this statute goes to the use for marketing and also to the sale by the pharmacy, and that sale may be for other purposes as well, so there--
Justice Ruth Bader Ginsburg: Ms. Asay, are any of the other uses, like for insurance purposes, cases where the pharmacist is paid for giving out the prescriber information?
Here what they call data miners are paying the pharmacists to get this information.
In the case of other, others who have access, do any of them also pay the pharmacists?
Ms Asay: --Your Honor, there's two sort of answers to that.
The first is that, with respect to pharmacies, the record shows here that the only place that the pharmacies disseminate their information is to the data vendors, and that is a commercial sale, and it is primarily intended for the marketing purpose.
Insurers do have information about doctors' prescribing practices and patient information.
They have that internally from their own claims and data and their relationships with doctors and patients.
So insurers are not -- do not need to buy the data from pharmacies.
They have it without purchasing it.
Justice Antonin Scalia: So -- so the data is not private in the sense that the physician who prescribes knows that nobody will know what he is prescribing and how much he prescribes and how often, because there are a lot of people who do know that, right?
Ms Asay: That's correct, Your Honor, there are people who know what the doctor prescribes and what the patient has received.
Justice Antonin Scalia: So the only thing it assures the physician, the physician who prescribes, is that he won't be bothered by drug companies who, on the basis of their knowledge of information which other people have, approach him in order to market their drugs?
That's basically all it assures the prescribing physician, right?
Ms Asay: It assures the prescribing physician that his information about prescribing practices will not be used for marketing without his consent.
It's like the difference--
Justice Antonin Scalia: And, and he could achieve the same objective, could he not, by simply refusing to talk to the marketer.
When the marketer says, you know, I want to talk to you about a new drug, he says: I don't talk to drug manufacturers and marketers.
Ms Asay: --He could not achieve the same result, Your Honor.
What the record shows is that doctors are particularly concerned about having access to the best information and the most complete information to make decisions for their patients.
And this data, as was discussed by Dr. Granday below, by Kesselheim, by Mr. Erhari, the former sales representative -- they all discussed how the data ends up being used to filter the information that doctors receive.
So they receive less--
Justice Samuel Alito: One of the Respondents argues that the statute would permit, does permit, the use of this information for what they call a counter-detailing effort.
Is that correct?
Ms Asay: --It is not correct, Your Honor, to the extent that Respondents have suggested that Vermont's academic detailing program, which is called the evidence-based education program, uses this data.
Justice Samuel Alito: That wasn't really my question.
My question was does the statute permit it.
If Vermont wanted to do that, the University of Vermont or some other entity wanted to do that, would the statute permit it?
Ms Asay: Well, the statute would not permit the sale for that purpose, which is a separate provision of the statute, because academic detailing is not an exemption.
They would also -- and then the question of whether the information would be available would default back to the pharmacy board rules, which again--
Justice Anthony Kennedy: Could that data be sold to a university for research purposes?
The university says: We really want this information to do some research.
Could the data be sold to the university for that purpose?
Ms Asay: --Yes, Your Honor, the statute does permit it to be sold for health care research--
Justice Anthony Kennedy: Could the researcher then have a profile, a data bank, that is very helpful to the general public, and sell that to the general public, to the newspapers and so forth?
Ms Asay: --We do not believe so, Your Honor, because of the background regulations that govern this information, including Pharmacy Board Rule 20, which we cited at page 4 of our brief, which also places restrictions on disclosure of patient and practitioner--
Justice Anthony Kennedy: No, no.
It's sold to the researcher.
The researcher then comes up with a design or database that is very fascinating for a number of reasons.
Can that researcher sell it to the New England Journal of Medicine?
Ms Asay: --I'm not sure if I understand whether the question is about the data itself or results drawn from the data.
But to the extent that the statute allows the sale of the data for research, the restriction on the other uses would accompany the sale, and--
Justice Ruth Bader Ginsburg: Would you clarify--
Justice Anthony Kennedy: I still am not -- I still am not sure.
In my hypothetical, what would happen?
Ms Asay: --When the -- if the pharmacy sold--
Justice Anthony Kennedy: The pharmacy sells to the researcher.
Ms Asay: --Right.
If that happened--
Justice Anthony Kennedy: The researcher is at the university.
The researcher has a data bank or has some results that are very fascinating.
The researcher then wants to sell that to the New England Journal of Medicine.
What result under the statute?
Ms Asay: --The statute would have required the pharmacy to prevent the further dissemination of the data except for health care research.
Justice Ruth Bader Ginsburg: --You answered my question earlier that they don't sell it to anyone else.
That's why I was trying to clarify your answer to Justice Kennedy, because you told me the only sale -- the pharmacists, they sell this to the data miners, they do not sell it to the other people.
But now you're answering Justice Kennedy's question, yes, they sell it to universities.
Ms Asay: I apologize, Your Honor, if I was not clear.
As a factual matter, we know absolutely that the pharmacies do not sell it to researchers.
I had understood this to be a hypothetical, if they did.
But as a factual matter, they do not.
Justice Antonin Scalia: How does it increase the prescribing physician's right of privacy that the data about his prescribing can only be given away but can't be sold?
Does that make him feel happier about his privacy?
Ms Asay: What it allows the doctor to do is to avoid an intrusive and invasive marketing practice.
Justice Antonin Scalia: He can do that by saying: I don't want to talk to you.
Ms Asay: The doctor cannot -- can shut off any communication and any information from the pharmaceutical companies by slamming the door on the detailers, but that's not necessarily in the interest of doctors or patients.
And what this--
Justice Antonin Scalia: That may well be, but then just don't tell me that the purpose is to protect their privacy.
Now you're arguing a totally different purpose: It makes it easier for the physician to cut off approaches by drug companies that want to sell drugs.
If that's the purpose of this statute, it's quite different from protecting his privacy.
His privacy isn't protected by saying you can't sell it but you can give it away.
Ms Asay: --Your Honor, I think the legislature here was using privacy to refer to the autonomy interest that everyone has to some degree in controlling the flow or the use of information about them.
This Court recognized in the Reporters Committee case in the FOIA context that there was a privacy interest in the aggregation of information on an FBI rap sheet.
Justice Sonia Sotomayor: Counsel, that -- assuming there's some form of privacy that relates to not being harassed because there's certainly legislative record of doctors or groups of doctors testifying to feeling harassed by detailers, if Thompson requires a less restrictive method, why does this have to be an opt-in rather than an opt-out?
Because isn't an opt-out I call up and say I, don't want you to have this information?
So isn't an opt-out less restrictive?
Ms Asay: An opt-out would not protect the privacy interests as much because it would assume that doctors want to consent.
I would like to say that here the statute is--
Justice Sonia Sotomayor: Well, but, given the restrictions on speech, why is that a bad thing?
Meaning you don't really intend to tell us that the State couldn't and wouldn't -- just like we got all of that advertising relating to the opt-out on telephone solicitations, virtually every American knew they could do it if they chose.
Maybe some didn't, but a vast majority did.
You can't really say Vermont's incapable of telling doctors in a mailing or in some public professional magazine, if you want to opt out, here's the number?
Ms Asay: --Well, in fact, Your Honor, that's exactly what the State does.
Every time that the doctors relicense, which is every 2 years, they get a form and they can make a decision one way or the other on the form that they receive.
So it's perfectly tailored to allow the doctors to decide and to not restrict any marketing between a willing listener and a willing speaker.
Justice Ruth Bader Ginsburg: There's another -- there's another purpose that I would like you to comment on, and that is the, the State is interested in promoting the sale of generic drugs and correspondingly to reduce the sale of brand name drugs.
And if that's the purpose, why doesn't that run up against what this Court has said that you can't, you can't lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?
Ms Asay: The State does have an interest in reducing health care costs here.
What's important about this statute is the mechanism by which it allows doctors to decide what information and what kind of marketing they want, and it's different because what it's about is access to information in this highly regulated area.
It's the difference between a doctor who prescribes a nonprescription drug and a patient who can take that information, walk into the pharmacy with a $20 bill and leave with their medication, and no one has learned anything about what the doctor prescribed for the patient, about the patient's concerns, or the doctor's concerns.
Chief Justice John G. Roberts: You want to lower -- you want to lower your health care costs, not by direct regulation, but by restricting the flow of information to the doctors, by, to use a pejorative word, but by censoring what they can hear to make sure they don't have full information, so they will do what you want them to do when it comes to prescribing drugs, because you can't take, I gather, direct action and tell them, you must prescribe generics, right?
Ms Asay: I disagree, Your Honor, for -- for two reasons.
The statute does not limit any of the information that doctors receive.
So the State has not in any way intervened in the information that the pharmaceutical manufacturers can provide to the doctors.
They are free--
Chief Justice John G. Roberts: You're restricting their -- you're -- you're making it far more burdensome for the manufacturers to reach their intended audience, right?
It's as if I want -- there's a demonstration in town, all right?
They need a permit to hold the demonstration.
They get the permit.
I want to hold a counter-demonstration, and you're saying it doesn't make any difference whether I know where their demonstration is going to be or not?
Ms Asay: --I disagree, Your Honor.
The -- the ability of drug companies to locate the doctors that are interested in their products is -- is not something that calls for this data.
Justice Anthony Kennedy: Well, I think maybe you're being -- you were the one that made the argument that the State has an interest in reducing health care costs.
I assume that is by selling generics.
And the Chief Justice asked you a question: In effect, aren't you doing this by regulating speech?
And you say no, you disagree.
I don't understand that answer that you gave to the Chief Justice.
Ms Asay: --It's not a restriction on speech because it's a restriction only on the access to the information that the pharmaceutical manufacturers would like to use to inform their advertising, and it's only in play if the doctors have objected to the use.
Justice Antonin Scalia: The information necessary for effective speech is what you're saying, right?
Ms Asay: Your Honor, it's--
Justice Antonin Scalia: It only restricts the information necessary for really effective speech?
Ms Asay: --No, I disagree.
For pharmaceutical manufacturers to approach--
Justice Antonin Scalia: They're looking for it because it -- it identifies those doctors that they would like to approach with their information which may say, you know, our product is much better than the generic; our quality control is -- you know, whatever.
There are arguments on both sides of those things.
And you are making it more difficult for them to speak by restricting access to information that would enable their speech to be most effective.
Ms Asay: --And -- their speech would be more effective if they had access to patient information, if they had access to their competitors' trade secrets.
There's certainly other information available that they would like to use in marketing, but is not available to them by law, and it -- it's our position that in the same way they do not have a right to demand access to information about the doctor's prescribing practices without his consent.
If there are no further questions--
Chief Justice John G. Roberts: Well, we'll -- we'll give you -- we seem to have questions.
We'll give you additional time for rebuttal, so you don't -- don't worry that we're cutting into that.
But you're making a judgment about how their -- whether or not their speech will be as effective or not.
Don't you think they're the ones who are entitled to make that judgment?
It doesn't mean that you're right or wrong.
It just means that we would not rely on your determination that it is -- their speech is just as effective.
They're the ones doing the speaking and they think it's not.
Ms Asay: --Again, Your Honor, I don't think we disagree that the -- the pharmaceutical manufacturers consider this information useful and helpful in targeting their marketing campaigns.
The issue in this case is whether their right trumps the right of the doctor.
And if you go back to -- to the source of this information, to the underlying transaction, the doctor prescribing the drug for a patient and the pharmacy dispensing it, the doctor and the pharmacy have the same stake in that transaction.
And until this point the pharmacy has had complete control over whether the information gets sold into this commercial stream for marketing use.
And all the statute does is put the doctor on the same -- in the same place as the pharmacy in terms of deciding what further use can be made of the information.
Justice Samuel Alito: Can I ask you this question?
Do you agree with the Solicitor General's interpretation of the statute?
Ms Asay: Yes, we do, Your Honor.
Justice Samuel Alito: Did you make that argument below?
Is that a change in your position?
Ms Asay: It is not a change in our position.
It is not an issue that was pressed below, because of the facts on the ground.
There is only one transaction here.
There's a sale from the pharmacies to the data vendors for these commercial purposes.
Justice Anthony Kennedy: But isn't this inconsistent with what you told the court of appeals?
Ms Asay: In our court of appeals brief, for example, at page 29 to 30, we describe that sentence of the statute as restricting both the sale of the information and the use for marketing.
And on page--
Justice Anthony Kennedy: So you -- you're representing to us that you told the court of appeals the statute should be interpreted as the SG is interpreting it here; that's your representation?
Ms Asay: --It is my representation that -- that we did not say anything contrary to that, Your Honor; and that it really was not pressed below.
So I would not say that we, in our briefs below, fully laid out the position as the SG has, but we did not disagree with it, either.
Justice Antonin Scalia: Well, that's an important position.
If you -- if that indeed was the meaning of the statute, you should have told the court of appeals, don't you think?
Is it enough to say we didn't say no?
You should have said yes.
You should have said this is what it means.
Ms Asay: And again, Your Honor, if I could point also to pages 47 to 48 of our -- of our Second Circuit brief, we did frame the issue as whether there was a right to buy and sell prescription records.
The issue has always been in the case.
But again the facts on the ground, there has only been this one transaction, and that -- that really was what we were litigating about.
Justice Samuel Alito: Well, the court of appeals on page 22a of the petition, summarizing what it understood you to be arguing, says:
"The statute only imposes restrictions on the sale or use of such data for marketing or promoting a prescription drug. "
That was an inaccurate characterization of your -- the Second Circuit did not understand your argument?
Ms Asay: Again, Your Honor, I -- I don't think that the argument was really framed clearly below.
But we did not--
Justice Samuel Alito: Could you please -- could you please answer yes or no?
If you're changing your position, you're changing your position.
It seems to me this is an important point, and if the Second Circuit based its decision on a misunderstanding of Vermont's interpretation of its own statute, I would think you would at least bring that out in the petition for rehearing.
Ms Asay: --I -- I understand, Your Honor.
Justice Samuel Alito: And you did not?
Ms Asay: We did not.
Justice Elena Kagan: And could you explain how you're going to interpret your statute going forward and apply your statute going forward?
Ms Asay: Yes, Your Honor.
We interpret the first clause of the statute to be a restriction on sale, except for sale for the exemptions that are set forth in the statute.
And the other provisions of the statute: The second provision is a restriction on the use for marketing; and the third provision is a restriction that would apply to pharmaceutical manufacturers who have obtained the data for permissible purposes and -- and need to abide by the continuing restriction on the use.
And the consent provision would apply to each of those parts of the statute.
Chief Justice John G. Roberts: We'll afford you 5 minutes for rebuttal.
ORAL ARGUMENT OF EDWIN S. KNEEDLER, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING the PETITIONERS
Mr. Kneedler: Mr. Chief Justice, and may it please the Court:
The Vermont statute protects important interests that the Vermont legislature could recognize in physician autonomy and control over information that concerns them.
When a patient brings a prescription to a pharmacy, after that point the patient information is protected under HIPAA and under State law.
That leaves two primary actors in that transaction -- the physician and the pharmacy.
Both are professionals, both are subject to regulation under a comprehensive, closed system for the distribution of drugs.
Prior to the time this statute was enacted, the pharmacy had complete control over the disposition of that information.
What this statute does is put the physician, the prescriber, on an equal footing with respect to the pharmacy -- with the pharmacy, with respect to the use of the information about that prescriber, but only with respect to the use of the information in marketing to that prescriber.
It is a narrowly drawn statute that enables the physician, not the State, enables the physician to determine whether the information that he was required to furnish in connection with the prescribing of a drug will be used in the marketing of products to that -- to that physician.
Chief Justice John G. Roberts: So he's required to provide it, but he would be required to provide it quite apart from the government regulation, right?
I mean, the pharmacy needs to know who to make the prescription out to.
Mr. Kneedler: Well, it's because it's a prescription drug.
Federal and State law require a prescription for a prescription drug.
But if this was not a prescription drug, a person can go into a drug store and purchase a nonprescription drug just like any other item in a drug store, not have to furnish the name, not have to furnish any of this information.
So the information is furnished because of the requirement of a prescription which is of long standing.
So this statute is really of a piece with a -- with a number of other types of regulations to protect -- protect privacy, for example, the Driver's Privacy Protection Act, where a person is required to furnish certain information in order to get a driver's license.
That statute prohibits the commercial exploitation of that information.
Justice Antonin Scalia: But it doesn't protect his privacy.
I mean, the -- his name and -- and the extent of his prescriptions can be given away for a lot of uses.
It doesn't protect his privacy.
Mr. Kneedler: It -- it--
Justice Antonin Scalia: It protect -- it enables him to protect himself against drug companies that want to talk to him.
Mr. Kneedler: --And that's -- the term "privacy" is used to embrace that sort of autonomy and control over information.
That's -- that's the way in which we're--
Justice Antonin Scalia: All right, so long as I know that's what you're talking about.
When you say "privacy", you don't mean the prescriber's concern that people will know that he prescribed certain drugs.
He doesn't care about that, right.
Mr. Kneedler: --Well, he certainly does--
Justice Antonin Scalia: That is not protected by this law.
Mr. Kneedler: --He -- he certainly -- he certainly does care about that.
Justice Antonin Scalia: It's not protected by this law.
Mr. Kneedler: --Well, there are other -- there are other principles that protect it.
The -- the -- the State's pharmacy regulations require pharmacies to maintain the confidentiality--
Justice Antonin Scalia: I'm talking about what this law protects.
It does not protect his privacy in that sense.
It protects his privacy in the sense that it enables him to avoid having to say go away when a salesman for the -- for the -- for the drug company comes, right?
Mr. Kneedler: --Yes, well -- it -- it -- it's a lesser version of that, a less restrictive version of that, because it doesn't put either the pharmaceutical company or the physician in the position of an all-or-nothing situation.
What -- what the law allows is the physician to -- to say, you can -- you can come visit me, but I don't want you to use this information that has otherwise been kept confidential under pharmacy rules to market to me.
That enables the physician to choose to have what the physician may choose -- may see as a more objective presentation.
Justice Antonin Scalia: You mean it doesn't even protect his privacy in the sense that it enables him not to have to say go away.
It doesn't even protect that.
They -- he -- he will still have to say that--
Mr. Kneedler: --If he -- if he doesn't--
Justice Antonin Scalia: --if the drug company approaches him without having this information.
Mr. Kneedler: --If -- if he doesn't want to talk to the -- to the detailer at all.
Justice Antonin Scalia: All right.
Mr. Kneedler: But what this allows for -- physicians see value to this, but what this allows for is for the physician to say: I don't want my information to be used by this drug company in a way -- sort of inside information about my overall prescribing practices.
I would -- I would prefer to have a presentation made to me without the information about me, but information about the drugs that might be--
Justice Samuel Alito: What about the doctor who didn't want the information distributed to anybody, academic researchers, anybody?
Does the law give that -- give the doctor that option?
Mr. Kneedler: --It -- it does not, but that's -- that's common in -- in -- in confidentiality statutes.
For example, HIPAA, which protects the personal information of -- of persons in the health care system, that information can be used and frankly would have to be used, for example, for paying insurance claims.
The insurer needs to know what prescriptions or what other medical services might have been provided.
The same thing with respect to insurers controlling their costs, because there are formularies and preferred drug lists.
And so, people in that position necessarily have to be able to use prescriber information in order to find out whether -- whether something was suitably prescribed under the preferred drug list.
So, it -- it's--
Chief Justice John G. Roberts: I thought our precedents made -- indicated that it's problematic for the State to make a determination about what uses information can be -- to what uses information can be put, particularly when it's an interested party as it is here.
Mr. Kneedler: --Well, what the statute does is allow the physician -- or the prescriber to make that choice.
It's information about the prescriber that the prescriber was required to furnish in connection with issuing a prescription.
Chief Justice John G. Roberts: I thought you told me that -- I thought you told me that this doesn't protect physician privacy to the extent of saying this information can't be used for academic purposes even if you, the physician, don't want it to be used for those purposes?
Mr. Kneedler: Right, and -- and -- and again, that -- that's true in a variety of -- of--
Chief Justice John G. Roberts: So the physician doesn't get to decide for what uses the information--
Mr. Kneedler: --Not -- not -- not altogether, but that doesn't mean that there is no confidentiality interest or no autonomy or control interest, because a physician practicing medicine knows that his patient's insurer is going to--
Chief Justice John G. Roberts: --What if the statute -- I'm sorry.
What if the statute said this information can be used for any number of purposes, except not for anybody who is going to criticize the State of Vermont?
Mr. Kneedler: --No, that would not be -- that would not be permissible.
It would not be germane to--
Chief Justice John G. Roberts: This information -- this information cannot be used for any purposes -- can be used for any purposes except a purpose that will make things more expensive for the State of Vermont?
Mr. Kneedler: --Well, I mean, that's -- that's a very broad goal.
I mean, here -- here what the State has done is -- is put the control in the physician, who is a critical player in the -- in the delivery system.
So it's narrowly tailored to the physician's use of the information about him in -- in connection with how -- how he will be approached.
It's also important to recognize that this is very different from the general advertising cases this Court has had under the commercial speech doctrine.
This is not public advertising.
This I think falls into the camp of Dun and Bradstreet, where you have a -- a targeted limited business audience, a -- a -- really one-on-one.
It's not -- it's not radio or television advertising.
It's one-on-one advertising in which the public interest is -- is much more limited, and it's one-on-one with respect to the very person whose information was first furnished by the physician to the pharmacy, so--
Justice Anthony Kennedy: Well, that's because the pharmaceutical company deems this to be the most efficient.
What you're saying is that the State can prohibit the most efficient sort of speech, whereas if it just had general dissemination which didn't serve any particular purpose, that would be all right.
Mr. Kneedler: --But it--
Justice Anthony Kennedy: --but if it becomes -- becomes focused and important and effective, then the State can prohibit it.
Mr. Kneedler: --It's allowing the other person to that representation visit to decide whether information about him, not other information; about him -- will be used in that situation.
It's very much like a don't -- a "do not call" statute or a "do not mail" statute, in which people have the right to say: Do not contact me for commercial information, except this one is more limited.
This one says--
Chief Justice John G. Roberts: What if you say--
Mr. Kneedler: --do not use information about me to contact me.
Chief Justice John G. Roberts: --Let's say I don't like to be bothered by people knocking on my door by saying, sign this petition.
Can I -- to protect my privacy interests, can I prevent that as a general matter?
Mr. Kneedler: No, but you could post a sign saying "no solicitations", and I think under this Court's cases that -- that sort of protection--
Justice Antonin Scalia: Can the State enact a law that, say, petition signers cannot approach somebody unless he has given his prior consent?
Mr. Kneedler: --No, but I think the--
Justice Antonin Scalia: Of course not.
Mr. Kneedler: --But I think the State could -- could enact a law that said if someone posts a sign saying do not -- do not approach me, do not knock on my door for this purpose--
Justice Antonin Scalia: Doctors can do that if they don't want to talk to the--
Mr. Kneedler: --If they don't want to talk at all.
But this -- but this -- this is -- this is addressed to a more limited problem and therefore is more narrowly tailored, which is that it -- what -- what -- what the pharmaceutical company can't do without the physician's consent is to -- is to use information that was gathered about that very individual to approach him.
It puts -- it puts the physician on an equal footing with the pharmacy at the -- at the beginning of the -- of the stream of commerce, it puts the physician on -- on an equal footing with the pharmacy or the pharmaceutical company at the other end by saying: I'm going to keep that information about me to myself if you'll -- if you are approaching me.
Justice Ruth Bader Ginsburg: Mr. Kneedler, in most of our commercial speech cases there has been a commodity.
Here it's a record maintained by the pharmacist.
We think of a pharmacist as selling the brand name or generic name, but whose list is this?
Whose record is it?
Is it the pharmacist's record the way goods, stock in trade, would be?
Mr. Kneedler: May I answer -- answer the question?
Chief Justice John G. Roberts: Yes.
Mr. Kneedler: It is -- it is in the possession of the pharmacy.
But what the State has done is to legitimately recognize that the physician has a stake in some of the information on that list, and in that respect the list is a -- is a commodity.
The State is regulating its commodity aspect, not its communicative or expressive aspect, in -- in this statute.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF THOMAS C. GOLDSTEIN ON BEHALF OF THE RESPONDENTS
Mr. Goldstein: Mr. Chief Justice, and may it please the Court, good morning:
You will want to have available you to the red brief of IMS Health, Incorporated, which in its appendix reproduces the statutes and findings.
And the reason we have to look at the statutes and findings in this argument is because the case can't be decided as a matter of absolutes.
We know that statutes like HIPAA do protect private information in third parties' hands and they are constitutional.
On the other hand, we also know that a governmental restriction on the use of information could be used to distort the marketplace of ideas.
So the case is going to have to be decided somewhere in the middle.
And in order to do that, we're going to have to figure out where in the middle Vermont ended up.
Now, in doing that I want to clarify I think three things in the questioning of the first half hour.
They are about what the practice are -- practices are at issue here; what this statute does, actually what's the rule; and why is it that Vermont did it.
So as to Justice Ginsburg's question, are there other sales, the State gave you the correct answer that the pharmacy companies don't sell to researchers, but that's somewhat misleading.
They sell to us, and we sell to the researchers, we sell to the government, the intermediaries like IMS Health.
That's because we're the aggregator.
So it is not correct to say that the only sale is for pharmaceutical marketing.
Second, on the important question of what this statute--
Justice Ruth Bader Ginsburg: I asked whether there are sales to any other entities.
Mr. Goldstein: --Yes, and I said the State gave you the accurate answer.
But the implication of the answer I think was not quite correct, because there are sales for purposes other than for marketing.
Justice Elena Kagan: But if this was a general sale provision, then that would include those sales that you're talking about?
Mr. Goldstein: It would not, because the point would then -- and I'll come to the statute in a minute, because all the exemptions -- right?
So there's -- there's a debate that Justice Alito focused on about what does the statute mean, and I do want to turn to that in a second.
But to jump ahead to your question, Justice Kagan, assume that it's a general sale prohibition.
Then there are all the exemptions and the exemptions take all of these other uses out from the sale prohibition: for academic research, to go to the government, and for clinical trials, for health care research.
Those are all exempted from the general sale prohibition.
So let's do turn, if you don't mind, to what it is the statute actually does.
It is an important point.
First, I am going to come to our brief, but I just want to read something.
For your later reference I'm going to have been reading from page 42 of PhRMA's brief, and this is what -- what the State told the Second Circuit, quote:
"Data vendors may continue to acquire, edit, and sell this information to whomever they choose so long as that person does not use the information for detailing. "
In turn, the Second Circuit--
Justice Anthony Kennedy: What was your page again?
Mr. Goldstein: --Sorry.
That's going to be from the PhRMA brief, the other red brief at page 42, at the top of the page.
So, to whomever they choose, so long as that person does not use the information for detailing.
The Second Circuit said: Okay, you're the State; here's how we understand the statute.
The statute only imposed -- quoting again, this is from 22A, it's the language that Justice Alito quoted -- the statute only imposes
"restrictions on the sale or use of such data for marketing or promoting a prescription drug. "
So that's what they understood the statute to do.
Now, then the question becomes why did they do it?
This was -- Justice Scalia, you tried really hard to get them just to admit, let's just acknowledge what the point is here.
And the State tries to deny that the purpose here is to limit the information getting into the hands of the doctor.
We don't have to rely on the State's lawyers.
The State legislature was very helpful here.
So if we go to the appendix of the IMS brief now, page 1a, okay.
Right at the top, the State says their goal is -- this is finding number 1 at the bottom of it -- containing health care costs.
Then in finding number 2 they explain why they did it:
"There is a strong link between pharmaceutical marketing activities, health care spending and the health of Vermonters. "
Then finding number 3:
"The goals of marketing programs are often in conflict with the goals of the State. "
And my favorite, obviously, is number 4:
"The marketplace for ideas on medicine safety, the State determined, was operating in conflict with the goals of the State. "
They didn't like the marketplace of ideas.
Now, it is true, we acknowledge, that another thing the State wanted to do was to give the doctors some more control.
It's in -- it's in -- there is an opt-out option.
But can I just take you to how the State explained what it was doing?
That's just going to be on page 7.
Now, the State's lawyer and the Solicitor General have explained to you that they believe that doctors were concerned only with marketing and only with marketing to them.
That's not true.
We have to go all the way to number 29 to get to this goal of the State: 7:
"Health care professionals in Vermont who write prescriptions for their patients have a reasonable expectation that the information in that prescription, including their own identity and that of the patient, will not be used for purposes other than the filling and processing of the payment for that prescription. "
It's not just about pharmaceutical marketing.
The doctors say -- we all love this; there's stuff about us in our daily lives that we wish was entirely private.
The doctors here said: Hey, it would be great for us if this information, we had complete control over it.
Doctors also would love if medical malpractice judgments weren't broadly known.
There are all kinds of government records they would prefer not to be out into the public sphere.
But then we ask ourselves, all right -- and that's why I asked you to have this brief available -- what did the State do?
Did the State in fact enact a general privacy provision?
Is it like HIPAA or instead is all that the State did here target the use for marketing, while it allows the use of the same data for the opposite message by insurers and also by the government?
So here's the statute.
It appears on page 9 of the appendix.
I want to start with subsection A because the State helpfully reiterates its goals here.
The second half of this paragraph:
"The State sought to ensure costs are contained in the private health care sector, as well as for State purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers received unbiased information. "
That's what they're trying to do.
They're trying to say: We would like the drug companies to have a harder time finding the doctors while the insurance companies and the State have an easy time finding the doctors.
Chief Justice John G. Roberts: But there is another interest here besides the State's concern about health care costs, and that is the physician's privacy interests.
Mr. Goldstein: Yes.
Chief Justice John G. Roberts: You can sell this information to whomever you want, right?
Mr. Goldstein: Yes.
Chief Justice John G. Roberts: You could sell to it a journalist who wants to expose physicians in a particular area who prescribe a lot of a particular medication.
Mr. Goldstein: Yes.
Chief Justice John G. Roberts: So the public can discern well, this is the guy who is treating these people; we don't like these people, so we're going to Pickett outside his clinic.
Mr. Goldstein: Sure.
Chief Justice John G. Roberts: Now, nothing prevents you from doing that, right?
Mr. Goldstein: That's correct.
Chief Justice John G. Roberts: Well, don't you think that's protecting physicians' privacy, to prevent that from happening?
Mr. Goldstein: Oh, I apologize.
We're allowed to do it before and after the statute, is my point.
Remember, what the statute does is -- and this was the debate that Justice Alito tried to point us to about what the statute actually does and the Second Circuit, what it understood the statute to mean.
And I should also say the cert petition didn't say that there was a problem with that.
Vermont picked out one thing.
It said: Look, when drug companies can find the doctors easily, they can persuade the doctors to use more expensive drugs.
We pay a lot for drugs.
We would prefer that not happen, so we're going to make it harder.
And the State will have its counter-detailing program, it will have its drug utilization review program, and insurers will advocate for less expensive drugs.
All the other uses are still permitted.
If Vermont were serious about protecting the doctors' privacy, as opposed to kind of a, a right of publicity, a control over information about them, it wouldn't have all these exemptions; it would have a provision that says this is private information.
Justice Stephen G. Breyer: All right, suppose -- suppose that the Federal Trade Commission after a 3-year study of pharmaceutical manufacturing practices, decides -- finds the following.
They say: We have found that when drugs are sold to doctors it is very important that the doctor find out what's curable, what the drug does, how much it costs; and by the way, all those things apply no matter who the doctor is.
Who the doctor is, is irrelevant.
And therefore marketing that focuses upon who the doctor is and what his previous practices were is irrelevant and harmful and false; and therefore we find that it is a false and deceptive practice under section 5 of the Federal Trade Commission Act to use the following prior practices of the doctor in selling him new drugs, because it's irrelevant and because it's false and because it's harmful.
And they enact that as a -- as a rule of the Federal Trade Commission.
Does the Constitution of the United States forbid them, having made those findings in detail, from controlling advertising to prevent what they have determined is a false and misleading practice?
Mr. Goldstein: I do know -- I don't know, but I do know the First Amendment applies to the rule.
Justice Stephen G. Breyer: Oh, nobody says it doesn't apply.
Mr. Goldstein: They -- they do.
I've got a couple people--
Justice Stephen G. Breyer: --I'm not interested in what they're saying for the present purposes.
I'm interested, surprisingly enough, in what I'm saying.
So therefore I would like to know the answer.
Mr. Goldstein: --Right.
Justice Stephen G. Breyer: This is a highly regulated industry.
Mr. Goldstein: Yes.
Justice Stephen G. Breyer: If the Federal Trade Commission's specialists and experts in false and deceptive advertising concludes that this is a false and deceptive practice, are you going to say that the Constitution of the United States forbids them from doing that?
Mr. Goldstein: I am, but I'm also going to say that I don't have to win that argument to win this case.
Justice Stephen G. Breyer: Well -- well, when you say you are, is there any precedent that says they can't regulate false and misleading practice?
Of course you see where I'm going.
Mr. Goldstein: I do.
Justice Stephen G. Breyer: If they can, why can't Vermont?
Mr. Goldstein: Sure.
If it's actually false and misleading.
You can't just--
Justice Stephen G. Breyer: Well, they said it was biased--
Mr. Goldstein: --I--
Justice Stephen G. Breyer: --and they -- they have made a study of it in the legislature and that's their conclusion.
Mr. Goldstein: --I don't think that the government can say that because speech is so influential it is false and biased.
But I will say, Justice Breyer, in my defense that--
Justice Antonin Scalia: I don't take "biased" to mean false.
"Biased" means one-sided.
Mr. Goldstein: --Yes, that's exactly right.
And what we like--
Justice Antonin Scalia: You state the true facts only on one side and not the other.
Mr. Goldstein: --Right.
Justice Antonin Scalia: This case has not been argued as a case restricting false advertising, has it?
Mr. Goldstein: No, it's a case about restricting true advertising.
Justice Breyer, can I just make one point really quick?
And that is, you dissented in Thompson v. Western States and your dissent in that case says these are drugs, the compounded drugs that have not been approved by the FDA, and I'm very concerned that you're evading the FDA regulatory requirements about truthful advertising.
These are the opposite drugs.
These are the drugs that all the messages that are being conveyed here have been preapproved by the FDA.
This is truthful and accurate speech, and the State only wants one side of the debate to get out.
Justice Stephen G. Breyer: That's where I was going.
Mr. Goldstein: Okay.
Justice Stephen G. Breyer: I chose an example that's beyond your case.
Mr. Goldstein: That's why it's called a hypothetical.
Justice Stephen G. Breyer: But that's why I wondered how you would respond to that.
So -- I thought that was one that was going to be obviously constitutional, but you're going to stop me there.
So -- so what I want to say--
Mr. Goldstein: Yes.
Justice Stephen G. Breyer: --is how is this different?
Mr. Goldstein: Sure.
Justice Stephen G. Breyer: And I suppose I don't know the extent to which this does or does not promote unbiased information from going to the doctors, and isn't that a matter for the doctors themselves and the Vermont legislature rather than this Court to decide?
Mr. Goldstein: Sure.
A couple of things about that.
First, as I said, these are messages that have been cleared by the experts.
The FDA has to review all the detailing communications.
Second, the doctors do get to say: I don't want you to come visit me.
They do that all the time.
My dad's a doctor; he doesn't visit with detailers.
This is instead a rule about whether you can talk about -- about someone, not talk to someone.
The drug companies and the intermediaries are talking about drug -- about prescriber practices, and you can decide who you want to try and approach.
There's nothing alleged to be false or misleading.
Third, the way the First Amendment works in the marketplace of ideas that so upsets Vermont is that both sides get to tell their story, right?
The thing that is supposed to be biased here is that the drug companies have too much money.
That is not a basis for restricting speech.
The way it works is if the message is accurate, as the FDA has determined it to be, the drug companies can go make their pitch.
Vermont can come along and make the opposite pitch.
So can insurance companies.
But what you can't do is have a rule that says one side is going to have a much harder time getting to their audience.
Justice Sonia Sotomayor: Mr. Goldstein, I -- I understand your argument and I have a difficulty.
Today with the Internet and with computers, there's virtually no privacy individuals have.
Any transaction you do could be spread across the world instantaneously, and for the longest time catalogs would sell your name and address to other catalogers, and if you bought one product from one company, you would get a thousand catalogs from 50 million others.
Today the industry is policing that, in part to get the State not to intercede, by giving you an opt-out option.
And so, if you're a consumer who doesn't want a million catalogs, the industry is giving you the right to opt out, so they don't sell your address.
If there is, as I see, some interest that the State legitimately has in protecting that part of the public who says, I entered into this transaction, I didn't really want you to sell my name, I didn't want you to do other things with it, all I did was this transaction, why can't the State say -- there is a difference in my mind between an opt-in and opt-out?
Why can't the State say, your desire to enter a transaction in which you're doing just that transaction and not others is something we can protect?
Mr. Goldstein: It can.
And let me explain why it is that that rule -- and let me typify it for you.
There is a pending bill in the Congress called the McCain-Kerry Consumer Protection Act and it does what you're talking about.
It says we're not just going to leave it to the industry; we're going to have a set of governmental rules.
Let me distinguish that bill from what goes on under Act 80.
What that says is that if you are a consumer and you engage in a transaction, you have the right to opt out of any unauthorized uses, because it's just between you and the business, right?
So there are three differences between that and this.
The first is the structure of the statute.
That's not what this statute does.
This statute says every use of the information is just fine, except this one, this one that allows one speaker who we don't really like to go out and convey its message.
The second difference is the public importance of the speech involved.
What that consumer information would be used for is to make some random consumer pitch to you or about you.
This is information about lifesaving medications where the detailer goes in and talks about double blind scientific studies that are responsible for the development of drugs that have caused 40 percent of the increase in the lifespan of the American public.
So there's a tremendous difference in the public importance.
The third is the fundamentally different nature of the privacy interest.
Unlike your consumer transaction over the Internet, this is a doctor.
You can call up any doctor's office and find out what their prescribing practice is.
It's part of their business.
Imagine the following conversation, if you will, and that is, and -- and if you want to look for a place in the common law where this comes from, it would be section 652D of the Restatement, Second, of Torts, what things are private and what aren't.
It asks whether a reasonable person would be outraged.
If one doctor were to say to another one, you know what, Dr. Smith told people that three out of four times I prescribe Aciphex for -- as a proton pump inhibitor, would anybody be outraged about that?
But if you knew that the -- the company that you bought from on the Internet was selling that information or if they were giving away private medical information, you would genuinely be outraged.
So, Justice Sotomayor, the reason I started this argument about it has to end up in the middle is we know that statutes like that have to be constitutional.
At the same time, we know that the government can use controls over information to really distort speech.
So the question is, what happens in this statute?
And this statute has a structure that's not intended to protect privacy.
It would look totally different.
Justice Sonia Sotomayor: I read in one of the briefs that pharmacies were not permitting either patients and/or doctors to opt out; that if a patient came in and said I don't want my doctor's information sold, or a doctor has called the pharmacy and said, I don't want you to sell my information, the pharmacies are not respecting those limitations.
Mr. Goldstein: Well--
Justice Sonia Sotomayor: So why don't I read this statute as simply doing what the consumer statutes are doing, which is giving people some control outside of the limited transaction that they're engaged in?
Mr. Goldstein: --Sure.
A couple of things.
Remember, the patients have nothing to do with this.
The State doesn't give any control to the patient.
That would be true before or after.
So we're talking about the doctors.
I -- I did concede, when I read you finding 29 at page 7 of the appendix, that this does give a little bit more control to the doctor.
I mean, it just does.
Justice Ruth Bader Ginsburg: May I stop you?
Mr. Goldstein: Yes.
Justice Ruth Bader Ginsburg: You say that this statute doesn't give the patient any control.
But the patient is already taken care of by the Federal law.
You can't -- I mean, the patient is protected.
The question is whether the physician should be as well.
Mr. Goldstein: I agree, Justice Ginsburg.
Justice Sotomayor in her question to me said, why don't I read this as giving -- she said that they aren't giving patients options about what happens with this prescription information.
My only point was this statute doesn't change it.
You're quite right that our -- our position is no threat to the protection of private health information, which is reasonably regarded as extremely confidential.
So, on the question of whether it give some greater control, it does.
But what -- the thing you have to focus on here is the line that it draws in when it gives greater control is a line that's intended to discriminate against a speaker.
You have to look, take -- I'll give you an example of this, Cincinnati v. Discovery Network.
The City of Cincinnati came to you and said, look, we've eliminated the commercial news racks, and these people who want to sell their commercial stuff should use something other than news racks.
We're targeting the blight that comes from commercial news racks.
This Court said: Look, you can't redefine your interests to reflect your statute.
Justice Stephen G. Breyer: Could the Federal Power -- the Federal Energy Regulatory Commission say, we want you to collect certain information about who is using what natural gas and give it to the fire department?
It's for the fire department in case of emergency, and what we don't want to have happen is it's used to stove manufacturers to sell homeowners gas stoves.
Mr. Goldstein: --Sure.
Justice Stephen G. Breyer: They could do that?
Mr. Goldstein: Yes.
That's LAPD v. United Reporting.
Justice Stephen G. Breyer: All right, fine.
If they could do that, why can't they do this?
Mr. Goldstein: Because the key point in LAPD v. United Reporting is that it's in the hands of the government.
Let me -- the fact--
Justice Stephen G. Breyer: Well, this is information -- see, this is information that starts off being collected because the government requires it to be collected.
So it's there for that reason.
And the government says we want you to get this information, it's done for this purpose, so, you know, other purposes, and we don't want it to be used for commercial advertising purposes.
That's what they say they've done in this statute.
Mr. Goldstein: --That's what they say.
They're just not right.
This information -- I would direct you to the amicus brief -- you don't have to pull it out right now, but for later.
The brief of the National Association of Chain Drugstores, if you just make a reference, on pages 10 to 11 collects the history of how this information has been gathered.
And they make the point that the Court did in the first 30 minutes, that of course the doctor is going to put his name on the prescription.
We have to be able to call the doctor and say: I can't read your handwriting.
Justice Anthony Kennedy: Suppose you had a statute in which the pharmacy cannot give the information or sell the information to anybody; it must remain with the pharmacy.
Mr. Goldstein: Yes.
Justice Anthony Kennedy: A copy of the prescription must be given to the State of Vermont.
The State of Vermont then has the same restrictions that this statute has.
That would be LAPD.
Mr. Goldstein: That would be LAPD.
If the -- it would be almost LAPD.
Justice Anthony Kennedy: And what -- and I want to know what your answer would be.
If LAPD is correct--
Mr. Goldstein: Right.
Justice Anthony Kennedy: --Then what ruling would we have to make in my hypothetical case?
Mr. Goldstein: Sure.
If it's in the hands of the -- so let me just make sure I am on the same page.
I am going to answer your question directly.
The pharmacy can't disclose it directly to anyone else.
The government gets a copy of it.
That does not make it LAPD.
If the pharmacy was government-owned, that would be LAPD.
Now, let me answer your hypothetical.
LAPD, it was an arrest record, it was in the hands only of the State.
The Court said: Look, this is the State's information.
Justice Ginsburg's concurrence says: It's like a subsidy, the decision whether to give it out or not.
Now, in your hypothetical, which is it is in a private hand, but it is banned for any other use -- that would be a real privacy statute.
I think that it would still be unconstitutional, but it would be much closer.
The reason it might be unconstitutional is twofold.
First, that the privacy interest in it I think is not very significant, because it's how the doctor runs his or her business, and second it would still allow the discrimination.
If you were convinced in your hypothetical that what Vermont was trying to do is what it said it was doing here in its findings, and that is, to make it harder for the drug companies to reach the audience and make it easier for the insurance company and the government to reach their audience, Greater New Orleans Broadcasting, which involves a ban on private casino speech but not tribal and governmental speech, says discriminating against speakers like that is very troubling.
So that's I think how your hypothetical--
Justice Sonia Sotomayor: So what you're saying I think to Justice Kennedy is answering my earlier question by saying the State cannot constitutionally stop the spread of information.
So if the State said to the pharmacy, all you can do is fill the prescription, that's what doctors think pharmacies are doing, and that's all you can do, you're saying that's unconstitutional?
Mr. Goldstein: --I am saying that that's unconstitutional.
I am also saying that the reason is very specific to this kind of information, that is that it would allow speaker discrimination, and I am also saying most emphatically that is not this case.
That would be a much closer case.
It would look much more like a real privacy statute.
What I would take from the hypothetical is not the lesson we should lose -- and you should never take that lesson--
--but the -- but instead the lesson that that's what's so different about this statute.
This statute, as in all the language quoted earlier, says Katie bar the door, do whatever you want to do with this stuff, just don't do something we disagree with when it comes to the message.
Justice Sonia Sotomayor: So you're really -- you are really hinging your argument on the discrimination aspect--
Mr. Goldstein: I am--
Justice Sonia Sotomayor: --that -- that drug companies or detailers are being treated differently than any other user of this information?
Mr. Goldstein: --That is a principal part of our argument.
I did say before in describing the Kerry-McCain bill, that there were three things, not just the discrimination, but the greater public interest of the -- the detailer speech and the lower privacy interest, so I wouldn't throw those out.
Now can I just preempt an argument that my friend from the Vermont -- State of Vermont is going to say in her rebuttal?
And that, is she's going to come and say that, look, the insurance companies are actually paying for the drugs.
All their -- this exception is not one that's about advocacy, and I just want to make sure we all know ahead of time because I don't get a surrebuttal, that that's not accurate.
So if -- if you still have the IMS brief with you at page 53 this time, so at page 53 the first paragraph is about the State's own use of this information for a variety of purposes.
There is -- the reply brief for the State introduces a debate about today whether they are using the NPI data for counter-detailing.
There is no dispute that they use it for other State programs, like the drug utilization program -- that's the quotes in the first paragraph.
But the better paragraph is going to be -- it's the second paragraph, it starts, the State --
"the statute's parallel formulary compliance exemption. "
And this paragraph talks about advocacy by the insurance companies.
So it's not just that the drug -- insurance company says to the doctor, I'll pay for -- $5 for this drug, but the insurance companies take PI data under the exemption in the statute, go to doctors and say we really think this cheaper drug would be better.
That is straight-out speaker discrimination.
So we quote Kolassa:
"Insurance companies are using physician-identifiable information to call physicians to try to get them to comply with formularies, to try to get them to change their prescribing in a way that may or may not be in the patient's best interests. "
"In just. "
--this is a further quote --
"In just the last couple of years there has been an amazing increase in the amount of information provided by payers, insurers that will send scientific documents to physicians. "
--I've rolled over to page 53 --
"will call when physicians are prescribing too much or too little of a product and provide them with information. "
It goes on and on -- "virtually several times a day".
So that is the message that I would take away from the argument, and that is we are emphatically in favor of the constitutionality of HIPAA, of the McCain-Kerry bill, the things that concerned you.
You have to decide this case in the middle about what Vermont actually did, and it was unbelievably candid about what it was trying to do.
It said the marketplace of ideas doesn't work for us, and so it designed a statute -- and you can decide this case very narrowly on the ground that what Vermont did is it went too far is in just saying we're not actually trying to protect privacy; what we're trying to do is give the doctors control when it suits our own best interests.
I do want to preempt one other last argument, and that is the suggestion that this isn't paternalistic at all.
We just let the doctors decide.
But the State's goal, what the State is trying to do, is paternalistic.
The reason the State picked this one exemption, the reason it picked between these speakers, is because it doesn't want this message to get to the doctors.
And if you can keep--
Justice Stephen G. Breyer: It used to be true there was something called a regulated industry.
Mr. Goldstein: --Yes.
Justice Stephen G. Breyer: And selling was simply one activity among many.
Mr. Goldstein: Sure.
Justice Stephen G. Breyer: And there were lots of regulations that could be imposed upon selling.
Mr. Goldstein: Sure, right.
Justice Stephen G. Breyer: Are you saying that all those should be reexamined?
Mr. Goldstein: I -- I thankfully am not.
Here are the -- here are the cases.
This was the argument that was made and rejected in Virginia Board of Pharmacy which was about a pharmacy rule.
They said that it would be unprofessional.
Then the Solicitor General in the person of Mr. Kneedler came you to in Thompson v. Western States and said we need to stop this compounded drug marketing because this is heavily regulated; this is a closed market, and the Court said, I'm sorry, no.
The nature of a marketplace of ideas is you get to say your piece and the other side gets to say their piece.
The FDA heavily regulates this area, the information is perfectly accurate and it's incredibly valuable.
Chief Justice John G. Roberts: You would have no objection I take it, if there were not the academic exception and if the State didn't -- didn't push its own contrary program?
Mr. Goldstein: We would have much less of an objection, and that's no accident.
Let me just say this is not a flaw in the drafting.
The State really wanted to push its counter message, and thankfully so.
This government has a real interest here.
Insurers have a real interest here, but so does the other side of the debate, and what the State doesn't get to do is just pick sides and prevent the debate from happening.
Chief Justice John G. Roberts: How would -- if you were truly concerned about physician privacy--
Mr. Goldstein: Yes.
Chief Justice John G. Roberts: --You didn't want people to know that this physician prescribed this drug more often because it tells you a lot about his practice--
Mr. Goldstein: Sure.
Chief Justice John G. Roberts: --that he may not want known, how would you -- how would you write this statute?
Mr. Goldstein: You would take Justice Kennedy's hypothetical, and I don't think the Court has to confront whether such a statute would be constitutional because it would be very different.
Chief Justice John G. Roberts: Would you remind me what Justice Kennedy said?
Mr. Goldstein: Sure.
He said the rule is the pharmacy can't give it to anybody.
Chief Justice John G. Roberts: Okay.
Justice Elena Kagan: How about the pharmacy can't sell it to anybody?
Mr. Goldstein: I don't -- I don't understand why that protects privacy.
That protects against commercialization, but I don't think the government has nearly as much interest in commercialization as it does in actual privacy.
Section 652D of the restatement of torts doesn't talk about the outrage of being able to use -- we have a capitalist economy, and we sell newspapers and books and those sorts of thing.
Commercialization isn't a bad thing.
It's a question of whether privacy is genuinely protected.
Justice Sonia Sotomayor: Could you do it--
Justice Anthony Kennedy: It's not exactly not this case but just in the abstract, do we have a rule that if there are two statutes, A, the statute is passed for a bad purpose, B, the statute is not passed for a bad purpose, if the statute is otherwise the same, are they both unconstitutional or just one and why?
And what case do I look to other than maybe Church of Lukumi?
Mr. Goldstein: You look to -- yes, we win -- Thompson v. Western States.
Remember what the government's argument there was: If you allow the marketing of compounded drugs that are not FDA approved you will evade the very important FDA regulatory program.
That was a perfectly important rationale, and the Court said but it also has the purpose of keeping information out of the hands of doctors.
I'll give you another example.
Grosjean, Minneapolis Star and -- Raglan -- those are cases about taxing the instruments of communication.
So a tax on newsprint, a tax on ink; and the Court said we're not worried about your bad motive, you have a very important rationale in trying to raise revenue, that's a perfectly valid purpose; but what you're also doing is you're picking out the press and you're making it harder to speak; it's unconstitutional.
Chief Justice John G. Roberts: --This -- this is, Mr. Kneedler explained this is the government's information.
Why can't -- you wouldn't have to have it if it weren't prescription.
It was the fact that it has to be prescribed that requires this information.
The government frequently controls the use to which information can be put.
It makes me file a tax return, and it doesn't allow, you know, dissemination of that.
It restricts it.
Mr. Goldstein: Right.
Chief Justice John G. Roberts: And presumably it could say that if an accountant prepares my tax return, that accountant can't sell it, either.
Mr. Goldstein: Right.
Chief Justice John G. Roberts: How is this any different?
Mr. Goldstein: Oh, okay.
Two pieces to the puzzle.
The first is why can't I demand it from the IRS?
And second is going to be why can't the accountant give it away?
The first one is LAPD, and it's the same true -- the same thing is true of campaign finance reports.
The government has plenary authority; when you give information to the government, what the government then does with the information.
The important lesson to be derived from LAPD is that nine members of the Court seemingly agreed -- and I defended the statute in that case -- nine members of the court in that case agreed that if this had been private reports rather than the government's reports, then the statute would have been unconstitutional.
The reason your tax preparer can't give it away, the reason I can't give away attorney-client secrets, the reason that the government is going to be able to tell Internet companies that they can't give await the consumer information is that it's really private.
But what if, instead, the government had a rule that says tax preparers can't give out tax information when it will encourage people to protest against their taxes?
But if it will encourage people to comply with their taxes, it's perfectly fine.
You can't draw lines that are intended to discriminate against speakers.
That's the main principle of our case.
Thank you very much.
Chief Justice John G. Roberts: Thank you, counsel.
Ms. Asay, you have five minutes.
REBUTTAL ARGUMENT OF BRIDGET C. ASAY ON BEHALF OF THE PETITIONERS
Ms Asay: I would like to begin with the point that my friend was making about the use of the information by insurance companies.
Insurers are not similarly situated to pharmaceutical manufacturers.
Insurers receive information directly from doctors and parents in the ordinary course of their business and they use it as part of providing and paying for care to patients.
And when my friend described the fact that insurers do that with doctors' information as speaker discrimination, I would like to point out that -- the -- not only the record but the examples, for example, that PhRMA points to on page 126 their brief show that insurers have patient information for that purpose as well.
HIPAA allows those uses of both patient and prescriber information to manage benefits.
So, to argue that pharmaceutical manufacturers are being discriminated against if they don't have access to the same health care information that we provide to our insurance companies would -- would begin to raise serious questions about a statute like HIPAA.
And that -- that just highlights that in this area of -- of private information and information control that many of these statutes are structured in such a way that there are expected and intended and permissible uses of information, and other uses for which people are allowed to have control over the further use of their information.
And here we're talking about the control allotted to doctors.
We place an enormous amount of trust in doctors to make the right treatment decisions for their patients.
Part of their ability to make that, those decisions depends on the information that they receive.
And what doctors have said to the Vermont legislature and to the Court in this case is that many of them find this practice objectionable and that it is not helpful to them or to their patients to have their information monitored for this marketing purpose.
And all that they have asked for is the right to object.
And I would like to--
Chief Justice John G. Roberts: Ms. Asay, I want to give you the chance to respond to a point that was highlighted by your friend, which is the fourth legislative finding, which does seem to say that the State is doing this because it doesn't like an imbalance in the marketplace of ideas.
Ms Asay: --Thank you, Your Honor.
The findings, first of all, have to be taken as they were adopted, which was in support of not this statute even as it was written, but as a much larger bill that contained many sections, including a provision that created the evidence based education program which is a -- a clinical -- a -- a program to provide voluntary education to doctors, and to the statute as it used to be written, which -- which not only had this provision for the doctors' choice and the use of the information, but also mandated that pharmaceutical detailers provide information affirmatively as part of the marketing process.
Chief Justice John G. Roberts: Do we have -- were there -- were there findings with respect to the statute as enacted?
Ms Asay: There are no findings that accompany the amendment that resulted in this statute.
And to -- to return to, I think Justice Kennedy's point from earlier, the statute, I think, has to stand or fall on the restriction that it -- that it allows for doctors.
The Court, for example, in O'Brien discussed the fact that striking down a statute because the court disagreed with the record would -- would simply mean that the legislature could adopt the same statute again on a different record.
We would say here that what -- what's -- the question before the Court really is, may doctors have this opportunity to control the use of their information about -- their nonpublic information about their prescribing practices as a marketing tool or not, and that -- that -- that should be the -- the focus of the Court's inquiry.
I would also like to just return to the point that -- that I believe I was making earlier that this statute is so different from the cases in which the Court has considered restrictions on the direct commercial advertising and the provision of information to the public.
This is an entirely nonpublic commercial transmission of data.
It -- it starts with a private commercial transaction, it's a private commercial exchange between the data vendors and the pharmacies.
It's used in a way that it is never disclosed publicly, never included in the advertising message.
There's no restriction here on the information that's provided to doctors.
The truthful information that the FDA permits to be provided about prescription drugs.
And there's no restriction on any exchange between a willing listener and a willing speaker.
I believe my friend suggested that -- that anyone could call a doctor's office and find out by asking what the doctor prescribed.
Pharmaceutical manufacturers can do that as well.
And if the doctor volunteers that information, there can be that exchange of information.
The statute does not restrict it.
Chief Justice John G. Roberts: I take it there's -- there's -- it's against the law for a physician to say I want you to fill this prescription in a particular place, a particular pharmacy because I know that pharmacy doesn't sell the information.
They can't do that, can they?
Ms Asay: I don't believe they can, Your Honor.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Kennedy: The second case is the opinion for the Court in Sorrel versus IMS Health.
Companies that manufacture brand-name prescription drugs, higher marketers to promote their products.
Some of these marketers visit doctor's offices to discuss the details and benefits of various pharmaceuticals.
So these direct marketers are called “detailers”.
Sales persons are often more effective when they are familiar with the preferences of their customers.
Pharmaceutical sales persons, including the so-called “detailers” are no exemption.
They use information regarding doctors past prescription decisions to concentrate their presentations on information that is most relevant to the individual doctor.
This information called “prescriber-identifying information” is collected by pharmacists.
Pharmacists sell this information to data miners.
These are firms that analyze the data and produce reports on individual prescription decisions.
Pharmaceutical manufacturers and the detailers then purchase the information from the data miners.
In 2007, Vermont enacted a law that place limits on the disclosure and use of prescriber-identifying information.
The measure prohibits pharmacists from selling the information and from disclosing it for marketing purposes.
The law also forbids pharmaceutical manufacturers from using the information for marketing.
Some Vermont data miners, and in association of pharmaceutical manufacturers, filed suit arguing that the law violated their First Amendment rights.
The United States District Court for the District of Vermont denied relief, but the Second Circuit reversed.
We now affirm the judgment of the Court of the Appeals for the Second Circuit.
Vermont's law raises serious First Amendment concerns.
It imposes burdens based on the content of speech.
Under Vermont's law, pharmacists may disclose prescriber-identifying information for many purposes including, for example, healthcare research.
But the law forbids pharmacists from selling or disclosing the information for marketing.
The law also imposes a restriction based on the identity of the speaker by preventing drug manufacturers from using the information for marketing.
Under the First Amendment, Vermont must justify these contents and speaker-based burdens on expression.
We conclude the State cannot do so.
Vermont suggest that its law protects the confidentiality of doctor's prescription decisions, but the law allows for the widespread disclosure and user-prescriber-identifying information and so does not advance any interest in confidentiality.
Vermont also suggests that this law will prevent detailers from selling so many brand-name drugs.
In the States' view, that outcome is desirable because brand-name drugs are expensive and pose special health risks.
The States' argument, however, is contrary to basic First Amendment principles.
The Government may not strive to keep its citizens in the dark so that they will make decisions the State prefers.
The judgment of the Court of Appeals is affirmed.
Justice Breyer has filed a dissenting opinion in which Justices Ginsburg and Kagan joined.