The Supreme Court Confirms First Amendment Protections for Pharmaceutical and Medical Device Manufacturers

The Supreme Court’s recent decision in Sorrell v. IMS Health, Inc. will have a lasting impact on the legal landscape surrounding the marketing of pharmaceuticals and medical devices. In Sorrell, the Supreme Court struck down a Vermont law that restricted the sale, disclosure, and use of physician prescription data in connection with pharmaceutical detailing. Writing for the 6-3 majority in Sorrell v. IMS Health, Inc., Justice Anthony Kennedy declared that speech in aid of pharmaceutical marketing “is a form of expression protected by the Free Speech Clause of the First Amendment” and found that Vermont’s law was an impermissible restriction on speech. While the idea that pharmaceutical marketing is a form of expression may not seem remarkable, the path the Court’s opinion took to reach this conclusion may have far-reaching ramifications for the health care field, including the government’s ability to regulate and to forbid off-label marketing.

Read more from the Fall 2011 edition of the Health Law Reporter.