• June 24, 2011

Pharma marketers are on the winning side of a U.S. Supreme Court decision involving data mining.  In a 6-3 decision in Sorrell v. IMS Health, Inc., No. 10-779, the Supreme Court struck down a Vermont law that restricted the use of prescriber histories for purposes of marketing or promoting pharmaceutical products to physicians.  In addition, the decision effectively reversed two earlier Circuit Court decisions that upheld similar laws in Maine and New Hampshire.   Dan Jaffe, EVP of Government Relations for the ANA (Association of National Advertisers) said the case "raised fundamental issues about what constitutes commercial speech and whether the government can undermine constitutional protection by simply labeling information used for marketing purposes as nothing more than a commodity." He said the Supreme Court decision "has made clear that data mining for marketing purposes is fully protected by the First Amendment.  This case is important not only for the pharmaceutical industry but the ad community in general."   The Sorrell case was a challenge to a Vermont law that restricts the use of prescriber-identifiable data for purposes of marketing or promoting prescription drugs.  The Court of Appeals for the Second Circuit struck down the law, holding that it violated the First Amendment by unnecessarily restricting commercial speech.  That decision conflicted with two recent decisions of the First Circuit which upheld similar laws in Maine and New Hampshire.   ANA filed a "friend of the court" brief with the Supreme Court in March urging the Court to strike down the Vermont law.  The brief was written by Robert Corn Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP.   We were joined in the brief by the American Advertising Federation (AAF) and the American Association of Advertising Agencies (AAAA) .