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67 Food & Drug L.J. 191 (2012)
A Critical Analysis of Sorrell v. IMS Health, Inc.: Pandora's Box at Best

handle is hein.journals/foodlj67 and id is 211 raw text is: A Critical Analysis of Sorrell v. IMS Health, Inc.: Pandora's Box at Best ISABELLE BILBET-KALINYAK* I. INTRODUCTION Sorrell v. IMS Health, Inc.I (IMS Health) is a remarkable health care case with resounding First Amendment and economic repercussions. It features the clashing interests of the State of Vermont and aggressive free market players in a constitu- tional battle over Free Speech. Against the backdrop of President Obama's health care overhaul, IMS Health stands out for its holding and for its challenge to the traditional notions of protected commercial speech.2 Brand-name drug manufacturers employ multiple channels to market their medi- cations in the U.S., where they face tough competition from generic drugs.' They target health care providers to increase sales by using detailers, industry jargon for pharmaceutical sales representatives.' When physicians prescribe medications to patients, pharmacies are under the duty to track certain prescriber-specific data by law.' Unbeknownst to patients, and often to doctors themselves, the pharmacies sell this precious commodity to data mining companies that analyze and format the information for the pharmaceutical industry.6 The data miners analyze and periodi- cally update this data to provide pharmaceutical companies valuable information about the prescribing habits of physicians. Leveraging this detailed physician- specific information, which includes competitors' data, the detailers skillfully tailor their presentations to the doctors in an effort to increase brand-name drug sales. In 2007, in a comprehensive effort to curtail rising health care costs and protect the safety and integrity of physicians' prescriber information, Vermont enacted The Confidentiality of Prescription Information Act, Act 80 § 4631(d) (Act 80).2 The law broadly prohibited the sale, disclosure, and use of pharmacy records revealing the prescribing practices of Vermont physicians, unless the physician expressly consented.' Three Vermont data miners (the data miners), IMS Health Inc., SDI (formerly Verispan LLC) and Source Healthcare Analytics, Inc., and Pharmaceuti- cal Research and Manufacturers of America (PhRMA), a national association of brand-name drug manufacturers, challenged the constitutionality of the Vermont J.D. Candidate, December 2012, The University of Akron School of Law; M.B.A., 1998, Kent State University; B.B.A., 1991, Temple University & CEFAM (France). I would like to recognize all those who supported me during the preparation of this article. First, I would like to thank my husband, Chris. Without the foundation of his love, support, and patience, the completion of this research would not have been possible. I would also like to thank my two academic advisors from the University of Akron School of Law: Professor Sarah M.R. Cravens, for sharing her expertise on legal writing; and Professor Wilson R. Huhn, for instilling in me his passion for Constitutional Law and sharing his im- mense knowledge. I also would like to thank my Akron Law Review student editor, Katherine Gehring, for her valuable input and advices. Finally, I want to acknowledge and thank Mary Kupferschmidt, my editor, for her professionalism and utmost dedication in honing this work. Sorrell v. IMS Health, Inc., 131 S.Ct 2653 (2011). 2 See infra Section III. B. See infra Section II. A. 3. See infra Section II. A. 3. See infra Section II. A. 3. 6 See infra Section II. A. 3. Confidentiality of Prescription Information, 18 V.S.A. § 4631 (2007). Act 80 fits into Vermont's Title 18, Part 5, Chapter 91 entitled Prescription Drug Cost Containment. ' See generally Sorrell, 131 S.Ct 2653, (2011). See also infra Section II. B.

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