Watch this Space - How Will Supreme Court Pharmaceutical Detailing Case Resonate in Privacy Debate?

This morning the Supreme Court heard oral argument in Sorrell v. IMS Health Inc. The case explores whether a Vermont law violates the First Amendment in prohibiting use of physicians’ prescribing histories by entities wishing to leverage the data for marketing. The case thus focuses principally on free speech jurisprudence, insofar as the Court has under review a decision that the state’s statute unconstitutionally restricts commercial speech. But at the same time, the issues arise against a privacy backdrop that implicates, among other things, use made of data reflecting individuals’ conduct for purposes of targeting marketing messages to them. IMS v. Sorrell thus marks the Supreme Court’s first encounter with government limits on commercial “data mining.” In this regard, one interest Vermont offers in support of its law is protecting an asserted “privacy” interest of doctors to not have information on what drugs they prescribe, for what purposes, used for marketing purposes. And various amici advocacy groups used the opportunity of filing briefs in support of Vermont to advance that point and related positions, in some cases suggesting that deciding the statute’s constitutionality pits protection of physician and patient privacy against marketing interests of commercial ventures (in this case, pharmaceutical “detailers” who make in-person presentations about prescription drugs). Consequently, the ultimate decision in the case (expected before the current Term ends in June) could explore the privacy issues, or at least discuss them in ways that resonate in future privacy debates, though the Court seemed more interested in reviewing this as state restriction on commercial speech than a privacy case. However, to the extent the Court tries to craft a middle position some privacy issues may be unavoidable. At oral argument today, several Justices probed at the nature of the claimed privacy interest in doctors’ prescribing practices. The questions examined whether this was simply a right to avoid being marketed, similar to interests underlying “do not call” or “do not mail” regimes, or whether it lies in the non-disclosure – to anyone, for any purpose – of what drugs doctors prescribe. In a similar vein, Justice Sotomayor inquired how Vermont’s statute and the privacy interest asserted differ from the approach taken by, for example, the recent Kerry-McCain privacy bill (recently discussed in this space here and here). Colloquy on this point explored the difference in the privacy interest(s) individuals have in their transactional dealings with other private parties and/or in health-related information, compared to data about what drugs doctors prescribe, which is revealed to pharmacists, insurers, and under Vermont’s law, can be disclosed and used for virtually any purpose other than marketing. It will be interesting to see how large a role the privacy issues ultimately play in the outcome of the case, and what if anything the Court says about the nature of individuals’ privacy interests, in this context or, perhaps, even more generally. We anticipate analyzing the Court’s opinion(s) when it decides that case, and reporting further here.