No.

10-­779

IN THE

WILLIAM H. SORRELL ET AL.,

Petitioners,
v.
IMS HEALTH INC. ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals
for the Second Circuit

BRIEF OF RESPONDENTS
IMS HEALTH INC., VERISPAN, LLC, AND
SOURCE HEALTHCARE ANALYTICS, INC.

Thomas R. Julin Thomas C. Goldstein

Jamie Z. Isani Counsel of Record
Patricia Acosta Kevin R. Amer
HUNTON & WILLIAMS LLP AKIN GUMP STRAUSS
1111 Brickell Avenue HAUER & FELD LLP
Suite 2500 1333 New Hampshire
Miami, FL 33131 Avenue, N.W.
Washington, DC 20036
Mark A. Ash (202) 887-­4000
MCGUIRE WOODS LLP [email protected]
2600 Two Hanover Square
Raleigh, NC 27601 Robert B. Hemley
Matthew B. Byrne
GRAVEL AND SHEA
76 St. Paul Street, 7th Fl.
Burlington, VT 05402
 QUESTION PRESENTED
Does the First Amendment allow the government
to freely permit the publication and use of
prescription-­history information, but ban the use of
the identical information to promote prescription
drugs, in order to correct a supposed “imbalance” in
the “marketplace for ideas,” Vt. Acts No. 80, §§ 1(4),
1(6) (2007)?
 ii
PARTIES TO THE PROCEEDING
Petitioners are William H. Sorrell, as Attorney
General of the State of Vermont;; Jim Douglas, as
Governor of the State of Vermont;; and Robert
Hofmann, as Secretary of the Agency of Human
Services of the State of Vermont.
Respondents are IMS Health Inc., Verispan,
LLC, and Source Healthcare Analytics, Inc.
Pharmaceutical Research and Manufacturers of
America was a plaintiff-­appellant below and is
expected to appear separately as a respondent in this
Court.

RULE 29.6 DISCLOSURES

IMS Health Incorporated is wholly owned by
Healthcare Technology Intermediate Holdings, Inc.,
which is wholly owned by Healthcare Technology
Intermediate, Inc., which is wholly owned by
Healthcare Technology Holdings, Inc. Verispan LLC
was succeeded by merger by SDI Health LLC. SDI
Health LLC is wholly owned by SDI Health Holdings
LLC. Source Healthcare Analytics, Inc. is wholly
owned by Wolters Kluwer Health, Inc., which is
wholly owned by Wolters Kluwer N.V. No publicly
held company owns 10 percent or more of the stock of
any of these parties.
 iii
TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDING ............................ii
RULE 29.6 DISCLOSURES ........................................ii
TABLE OF CONTENTS............................................ iii
TABLE OF AUTHORITIES ....................................... iv
STATEMENT OF THE CASE..................................... 1
ARGUMENT .............................................................. 10
I. The Second Circuit Correctly Concluded
That Vermont’s Prescription Information
Law Violates the First Amendment. .......... 11
A. Vermont’s Prescription Information
Law Is a Restriction of Protected
Speech. .................................................. 12
B. Vermont’s Restriction on the
Transfer and Use of Prescriber
Information Does Not Advance a
Legitimate State Interest..................... 21
C. Vermont’s Law Is Not Narrowly
Tailored. ................................................ 24
II. Certiorari Is Nonetheless Warranted
Because the Ruling Below Directly
Conflicts with the Settled Precedent of
the First Circuit........................................... 27
III. This Case Is An Ideal Vehicle to Decide
the Question Presented, Which Is
Profoundly Important. ................................ 31
CONCLUSION .......................................................... 35
 iv
TABLE OF AUTHORITIES

Page(s)
CASES

44 Liquormart, Inc. v. Rhode Island,

517 U.S. 484 (1996) ............................................. 15

Board of Trustees of State University of New

York v. Fox,
492 U.S. 469 (1989) ............................................. 12

Buckley v. Valeo,
424 U.S. 1 (1976) ................................................. 22

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) ............................................. 12

Edenfield v. Fane,
507 U.S. 761 (1993) ....................................... 15, 22

Fed. Election Comm’n v. Massachusetts

Citizens for Life, Inc.,
479 U.S. 238 (1986) ............................................. 22

Greater New Orleans Broad. Ass’n v. United

States,
527 U.S. 173 (1999) ............................................. 24

IMS Health Corp. v. Rowe,

532 F. Supp. 2d 153 (D. Me. 2007)...................... 19

IMS Health Inc. v. Ayotte,

490 F. Supp. 2d 163 (D.N.H. 2007) ..................... 19
 v
IMS Health Inc. v. Ayotte,
550 F.3d 42 (1st Cir. 2008) ........................... passim

IMS Health Inc. v. Mills,

616 F.3d 7 (1st Cir. 2010) ...........................8, 28, 29

LAPD v. United Reporting Publishing Corp.,

528 U.S. 32 (1999) ............................................... 20

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ....................................... 15, 16

Lowe v. SEC,
472 U.S. 181 (1985) ............................................. 13

McConnell v. Fed. Election Comm’n,

540 U.S. 93 (2003) ............................................... 22

Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of Revenue,
460 U.S. 575 (1983) ............................................. 16

Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ............................................. 12

Rubin v. Coors Brewing Co.,

514 U.S. 476 (1995) ............................................. 15

Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984) ............................................... 18

Thompson v. Western States Medical Center,

535 U.S. 357 (2002) ....................................... 15, 21

United States v. Stevens,

130 S. Ct. 1577 (2010) ......................................... 29
 vi
Virginia State Board of Pharmacy v. Virginia
Consumer Council, Inc.,
425 U.S. 748 (1976) ............................................. 13

STATUTES

15 U.S.C. § 6802.........................................................17

21 U.S.C. §§ 332-­337 ................................................4, 5

42 U.S.C. § 1320d-­6 ...................................................17

47 U.S.C. § 551(c)(1) ..................................................17

Cal. Fin. Code § 4052.5 ..............................................18

D.C. Code § 48-­831.04................................................26

Fla. Stat. Ann. § 465.025 ...........................................26

Me. Rev. Stat. Ann. Title 22 § 1711-­E(2-­A) ........28, 32

Me. Rev. Stat. Ann. Title 22 § 2697 ..........................26

Me. Rev. Stat. Ann. Title 22 § 2700-­A ......................26

Minn. Stat. § 151.461 ................................................26

N.H. Rev. Stat. Ann. § 126-­A:5, XVII .........................5

N.H. Rev. Stat. Ann. § 318:47-­d ................................26

N.H. Rev. Stat. Ann. § 318:47-­f ...........................27, 31

Vt. Stat. Ann. Title 18 § 4622....................................23

Vt. Stat. Ann. Title 18 § 4622(a)(1) .............................5

 vii
Vt. Stat. Ann. Title 18 § 4631 ............................ passim

Vt. Stat. Ann. Title 18 § 4631(d) .............................5, 6

Vt. Stat. Ann. Title 18 § 4631(e)..................................6

Vt. Stat. Ann. Title 18 § 4631(e)(1) ...........................23

Vt. Stat. Ann. Title 33 § 2005a ..................................26

W. Va. Code Ann. § 5-­16C-­9 ......................................26

W. Va. Code Ann. § 5-­16C-­9(a)(5)............................5, 6

REGULATIONS

21 C.F.R. § 202.1(e)(5) .................................................4

21 C.F.R. § 202.1(e)(6) .................................................4

45 C.F.R. pt. 160 ....................................................3, 19

45 C.F.R. pt. 164 ....................................................3, 19

OTHER AUTHORITIES

American Medical Association, PDRP: The

Choice Is Yours .......................................................4

Ashlee Vance, Data Analysts Are Mesmerized

by the Power of Program R, N.Y. Times, Jan.
7, 2009 ...................................................................33
 viii
Brief for Coalition for Healthcare
Communication as Amicus Curiae
Supporting Petitioners, IMS Health Inc. v.
Ayotte, 129 S. Ct. 2864 (2009) (08-­1202)..............22

Brief for Council of American Survey Research

Orgs. et al. as Amici Curiae Supporting
Petitioners, IMS Health Inc. v. Ayotte, 129
S. Ct. 2864 (2009) (08-­1202) .................................32

Brief for New England Legal Foundation et al.

as Amici Curiae Supporting Petitioners,
IMS Health Inc. v. Ayotte, 129 S. Ct. 2864
(2009) (08-­1202) ....................................................33

Brief for Pacific Legal Foundation et al. as

Amicus Curiae Supporting Petitioners, IMS
Health Inc. v. Ayotte, 129 S. Ct. 2864 (2009)
(08-­1202) ...............................................................24

Jon O. Newman, In Banc Practice in the

Second Circuit: The Virtues of Restraint, 50
Brook. L. Rev. 365 (1984) .....................................30

Tal J. Zarsky, “Mine Your Own Business!”:

Making the Case for the Implications of the
Data Mining of Personal Information in the
Forum of Public Opinion ......................................33
 2
Amendment because the government cannot seek to
inhibit truthful speech, obviously including speech
about important issues such as the efficacy of
prescription drugs. The court of appeals
acknowledged that its decision squarely conflicts with
the precedent of the First Circuit, which has upheld
similar statutes enacted by New Hampshire and
Maine.
1. Information relating to pharmaceutical
prescriptions has long been widely distributed and
used for numerous purposes. For example,
researchers use the information to “identify overuse
of a pharmaceutical in specific populations, to
develop new drugs, and to facilitate identification of
potential patients to participate in clinical trials.”
Pet. App. 7a. The government employs the “data to
monitor usage of controlled substances and to
identify prescribers who need time-­sensitive safety
information.” Id. Pharmaceutical companies use the
same information “to track disease progression, to aid
law enforcement, to implement risk-­mitigation
programs, and to conduct clinical trials and post-­
marketing surveillance required by the United States
Food and Drug Administration (‘FDA’).” Id. 6a.
Prescription-­history information is also used to
influence the sales of prescription drugs. It is
regularly employed “to encourage the use of cheaper,
generic medications.” Id. 7a. Specifically, “insurance
companies and state governments use [the] data” to
identify prescribers who make heavy use of brand-­
name drugs for which there are generic alternatives.
Id. Insurance companies, in particular, use the
information “to manage formulary compliance”
programs that require use of generic substitutes. Id.
 3
Conversely, brand-­name pharmaceutical
companies use prescription-­history information to
promote their drugs. The companies employ the data
“to identify audiences for their marketing efforts, and
to focus marketing messages for individual
prescribers.” Id. 6a. These marketing
communications – often in the form of in-­person
“detailing” visits – go well beyond merely providing
pricing information. The companies instead “direct
scientific and safety messages to physicians most in
need of that information,” id., “including the use, side
effects, and risks of drug interactions,” id. This
information is essential to prescribers, who must be
aware of the most current data related to
medications, including potential side effects and drug
interactions. For example, a drug company might
use prescription-­history information to identify the
principal physicians in a region who treat certain
cardiological ailments in order to provide them with
information on the benefits of specific medications
designed to improve heart health. Alternatively, the
company may become aware of adverse side-­effects of
certain medications and need to identify the
prescribers who are most in need of that safety
information. In turn, through detailing, the
companies learn from prescribers’ experiences with
various treatments and use that information to
improve their therapies. C.A. App. A 196 (Wharton).
2. Some states are hostile to pharmaceutical
detailing. Their concern is not patient privacy.
Federal and state law require that pharmacy
companies remove all patient-­identifying information
before transferring prescription-­history information.
See C.A. App. A 221 (Tierney);; see generally 45 C.F.R.
pts. 160 & 164.
 4
Nor is there a significant concern that detailing
intrudes on physicians’ practices. “[P]rescribers are
free to decline meetings with detailers.” Pet. App. 6a.
Further, an American Medical Association (AMA)
program permits prescribers to restrict
pharmaceutical sales representatives’ use of
information about their prescribing practices. See
generally American Medical Association, PDRP: The
Choice Is Yours, available at http://www.ama-­
assn.org/ama1/pub/upload/mm/432/pdrp_brochure.pd
f (last visited Dec. 15, 2010).
Similarly, “[t]here is no allegation that the
commercial speech regulated by [these laws] is either
misleading or related to an unlawful activity.” Pet.
App. 21a. The federal government prohibits any drug
promotion that is false, misleading, or that lacks a
“fair balance between information relating to side
effects and contra-­indications and information
relating to effectiveness.” 21 C.F.R. § 202.1(e)(5)-­(6).
See generally 21 U.S.C. §§ 332-­337. The Food and
Drug Administration has “unparalleled enforcement
power” under the statute, including injunctive and
criminal remedies. C.A. App. A 139, A 143 (Hutt).
Instead, opponents of detailing object to the
success of the messages conveyed by drug companies.
They maintain that promotion of brand-­name drugs
increases the cost of health care and, in some
instances, leads to the use of therapies that are later
determined to present health risks.
States subscribing to that view have not sought
to prohibit detailing itself. Instead, they have
adopted two less-­direct regulatory responses.
First, states have developed “counter detailing”
 5
programs, under which the government itself uses
prescription-­history data to identify and contact
prescribers to persuade them to choose less-­expensive
(often, generic) medications. For example, Vermont
has adopted an “evidence-­based prescription drug
education program” to utilize one-­on-­one
communications between the State’s representatives
and health care providers to encourage the
prescription of less expensive generic drugs. Vt. Stat.
Ann. tit. 18, § 4622(a)(1). Among other functions, the
program “notif[ies] prescribers about commonly used
brand-­name drugs for which the patent has expired
within the last 12 months or will expire within the
next 12 months.” Id. § 4622(a)(2). See also, e.g., N.H.
Rev. Stat. Ann. § 126-­A:5, XVII;; W. Va. Code § 5-­16C-­
9(a)(5).
Second, some states have sought to inhibit
detailing by generally prohibiting the transfer of
prescription-­history information for use in drug
marketing, as well as marketing on the basis of that
information. Vermont’s statute is illustrative. It
provides:
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 prescriber-­identifiable information,
nor permit the use of regulated records
containing prescriber-­identifiable information for
marketing or promoting a prescription drug,
unless the prescriber consents as provided in
subsection (c) of this section.
Vt. Stat. Ann. tit. 18, § 4631(d). Further,
“[p]harmaceutical manufacturers and pharmaceutical
 6
marketers shall not use prescriber-­identifiable
information for marketing or promoting a
prescription drug,” absent the prescriber’s consent.
Id.
By its terms, the statute authorizes the use of
prescription-­history information for any purpose
other than marketing, including specifically
“pharmacy reimbursement;; prescription drug
formulary compliance;; patient care management;;
utilization review by a health care professional, the
patient’s health insurer, or the agent of either;; . . .
health care research”;; transmissions “between
licensed pharmacies”;; and “care management
educational communications.” Id. § 4631(e). Indeed,
recipients are perfectly free to publish the
information publicly.
The Vermont state legislature specified the
statute’s purpose in a series of findings. The
legislature expressed concern that the “marketplace
for ideas on medicine safety and effectiveness is
frequently one-­sided” in favor of drug companies. Vt.
Acts No. 80, § 1(4) (2007). Believing that the
companies’ interests are “often in conflict with the
goals of the state,” id. § 1(3), the legislature acted to
correct what it viewed as a “massive imbalance in
information presented to doctors and other
prescribers,” id. § 1(6).
3. The Vermont statute gave rise to this lawsuit
filed by respondents against petitioners.
Respondents do not now challenge the State’s
counter-­detailing program. Instead, they maintain
that the statutory provision permitting the
distribution and use of prescription-­history
information except for use in marketing violates the
 7
First Amendment.
Respondents IMS Health, Verispan, and Source
Healthcare Analytics (collectively, “the Publisher
Respondents”) are among the world’s largest
publishers of information, research, and analysis for
the health care and pharmaceutical industries. As is
relevant here, the Publisher Respondents collect and
analyze prescription-­history information. The
reports prepared by the Publisher Respondents are
used for the many diverse purposes discussed above.
Respondent Pharmaceutical Research and
Manufacturers of America (PhRMA) is a trade
association representing brand-­name pharmaceutical
companies. The Publisher Respondents produce
reports identifying, inter alia, the physicians who
regularly treat particular conditions or prescribe
specific prescription medications, as well as those
who have shown themselves to be most willing to
consider adopting new therapies. PhRMA’s members
use those reports in their detailing efforts.
The district court held a five-­day bench trial,
during which the parties developed an extensive
factual record. Following the trial, the district court
issued an opinion and order upholding the law’s
constitutionality. Pet. App. 68a-­118a. Concluding
that Section 4631 is properly understood as a
regulation of commercial speech, the court held that
the law survives intermediate constitutional scrutiny.
Pet. App. 69a.
4. On respondents’ appeal, the Second Circuit
reversed. In so holding, the court expressly rejected
the precedent of the First Circuit, which previously
upheld similar New Hampshire and Maine statutes.
 8
IMS Health Inc. v. Mills, 616 F.3d 7 (1st Cir. 2010);;
IMS Health Inc. v. Ayotte, 550 F.3d 42 (1st Cir. 2008),
cert. denied, 129 S. Ct. 2864 (2009).
Preliminarily, the court of appeals held that
Section 4631 is a restriction on speech, not merely a
limitation on access to information. The court of
appeals reasoned that prescription-­history
information is within the category of constitutionally
protected speech, which extends to “‘[e]ven dry
information, devoid of advocacy, political relevance,
or artistic expression’.” Id. 14a (citation omitted).
The court reasoned that the statute cannot be
analogized to measures that protect individual
privacy for two reasons. It freely permits the
distribution of prescription-­history information for
numerous purposes. Also, the avowed purpose of the
statute is to inhibit speech: detailing visits by
pharmaceutical companies. Id. 16a-­17a.
The Second Circuit held that the Vermont statute
is invalid under “even the lower intermediate
scrutiny that applies to regulations of commercial
speech.” Pet. App. 20a. Vermont’s asserted interest
in “medical privacy,” the court found, is “too
speculative to qualify as a substantial state interest”
because Vermont had not shown that detailing has
any effect on the integrity of the prescribing process
or the trust patients have in their doctors. Id. 23a.
Further, the statute does not directly advance
Vermont’s interests in protecting public health and
reducing health care costs because it seeks to alter
prescribers’ behavior through the indirect route of
hampering detailers’ marketing messages. That
approach, the court concluded “is too indirect to
survive intermediate scrutiny.” Pet. App. 28a.
 9
Noting that Vermont’s avowed purpose in
restricting pharmaceutical detailing is to make the
debate over prescription drugs less “one-­sided,” the
Second Circuit held that under the First Amendment
Vermont is not free to “put [its] thumb on the scales
of the marketplace of ideas in order to influence
conduct.” Id. 25a. See also id. 28a (“[T]he statute
restricts protected speech when uttered for purposes
the government does not approve of in order to
reduce the effectiveness of marketing campaigns and,
ultimately, alter the behavior of prescribers, who are
not regulated by the statute.”).
Finally, the court of appeals held that Vermont
failed to demonstrate that its interests could not be
as well served by a more limited restriction on
speech. The statute applies “to all brand name
prescription drugs, irrespective, for example, of
whether there is a generic alternative or whether an
individual drug is effective or ineffective.” Id. 29a.
At the same time, there are alternative, less speech-­
restrictive means, such as counter-­detailing
programs, available to Vermont that are more
“directly targeted at encouraging the use of generic
drugs the state wishes to promote.” Id. 33a.
Judge Livingston dissented. She would have
construed Section 4631 not as a speech restriction
but instead as a permissible restraint on publishers’
and pharmaceutical companies’ right of access to
prescription information in the possession of
pharmacies. In her view, the publication of
prescription-­history information does not sufficiently
“‘advance[]’ the ‘values served by the First
Amendment’” to constitute protected speech. Id. 45a-­
46a. In the alternative, Judge Livingstone would
 10
have upheld the statute as a permissible regulation
of commercial speech. Id. 50a.
The State of Vermont subsequently sought
certiorari.
ARGUMENT
The Second Circuit correctly concluded that
Vermont’s general prohibition on the publication and
use of prescription-­history information to market
brand-­name drugs violates the First Amendment.
Section 4631 restricts speech by limiting the
Publisher Respondents’ publication of reports on
prescribing practices. The State also directly bans
certain marketing communications, and does so with
the avowed purpose of shielding prescribers from
entirely truthful and non-­misleading information and
messages. The government simply disagrees with
the informed choices physicians would make on the
basis of that information.
There is no merit to petitioners’ attempt to recast
Section 4631 as merely a regulation of access to
information. The statute is obviously not intended to
control the distribution of information in order to
preserve privacy, as it freely permits the distribution
and use of prescription-­history information for any
person and for any purpose other than marketing.
The First Amendment does not permit the State
to adopt such a paternalistic regime, particularly in
the absence of evidence that the statute is necessary
and effective to further an important governmental
interest. The constitutional infirmity in the Vermont
scheme is significantly compounded by the fact that
the State engages in viewpoint discrimination, as it
permits both the government and insurers to use the
 11
identical prescriber-­history information in order to
convey a message of discouraging the use of brand-­
name drugs.
Though the Second Circuit’s constitutional
analysis was correct, petitioners are correct that this
Court’s review is warranted. The court of appeals
properly recognized that its decision conflicts with
the precedent of the First Circuit, which has upheld
similar measures enacted by New Hampshire and
Maine.
Review is also warranted because this case, in
which the parties compiled an extensive evidentiary
record and the court of appeals has entered a final
judgment invalidating the statute, is an ideal vehicle
in which to decide the question presented and to
resolve the circuit conflict.
Finally, the importance of the question presented
is beyond dispute. Pharmaceutical marketing has a
significant impact on the public health. Further, the
government’s power to ban the collection,
aggregation, and distribution of truthful information
is a recurring question with great significance for
virtually any commercial endeavor involving the
analysis and publication of factual information.
Certiorari accordingly should be granted.
I. The Second Circuit Correctly Concluded
That Vermont’s Prescription Information
Law Violates The First Amendment.
The Second Circuit properly concluded that
Section 4631 is an unconstitutional restraint on
speech, and not, as Vermont argues, merely a control
on access to information. Under a uniform line of
 12
this Court’s precedents, the transmission of truthful
factual information is protected speech under the
First Amendment. 1
A. Vermont’s Prescription Information
Law Is A Restriction Of Protected
Speech.
1. Section 4631 restricts respondents’
constitutionally protected speech in multiple
respects. The statute presumptively bans every link
in the chain of the communication of prescription-­
history information for marketing purposes: the
communication between pharmacies and the
Publisher Respondents, as well as the subsequent
communication of reports analyzing that data
between the Publisher Respondents and

1 While Section 4631 cannot satisfy even intermediate

scrutiny, respondents adhere to their position that the statute
should be subject to strict scrutiny because the speech it
prohibits is not merely commercial speech. In Board of Trustees
of State University of New York v. Fox, 492 U.S. 469, 473-­74
(1989), and City of Cincinnati v. Discovery Network, Inc., 507
U.S. 410, 422 (1993), this Court held that the category of
“commercial speech” receiving lessened First Amendment
protection is limited to statements that propose a commercial
transaction. Because respondents’ speech goes well beyond
proposing a commercial sale, it falls outside that narrow
category.
Although the pharmaceutical companies are marketing
their products, Section 4631 is subject to strict scrutiny because
that commercial message is “inextricably intertwined with
otherwise fully protected speech” – information regarding the
drugs’ merits. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 796 (1988). For that reason, this case would provide
the Court with the opportunity to revisit the broader question
whether commercial speech should remain subject to lessened
First Amendment protection, or should instead be treated as
fully protected speech.
 13
pharmaceutical companies.
“Data miners do not themselves use [prescriber-­
identifiable] data in their own marketing efforts.”
Pet. App. 20a. Rather, the exchanges of information
prohibited by Vermont constitute speech protected by
the First Amendment. On Vermont’s contrary view
that prescription-­history information is merely data
unprotected by the First Amendment, the State is
free to prohibit the Wall Street Journal from
publishing stock prices.
The Second Circuit properly concluded that a
prohibition on the distribution of factual information
is subject to First Amendment scrutiny. In Virginia
State Board of Pharmacy v. Virginia Consumer
Council, Inc., 425 U.S. 748 (1976), the Court held
that a ban on the advertising of prescription drug
prices violates the First Amendment. The Court
expressly rejected the state’s claim that the First
Amendment is inapplicable because the advertising
“merely reports a fact”: “Purely factual matters of
public interest may claim [First Amendment]
protection,” id. at 762, because it is “indispensable” to
the “public interest” that there be a “free flow” of
“information as to who is producing and selling what
product, for what reason, and at what price,” id. at
765. Cf. Lowe v. SEC, 472 U.S. 181, 210 (1985) (“[t]o
the extent that the chart service contains factual
information about past transactions and market
trends, and the newsletters contain commentary on
general market conditions, there can be no doubt
about the protected character of the
communications”).
Further, the Vermont statute also bans
pharmaceutical companies from engaging in
 14
marketing that employs prescription-­history
information. Section 4631 directly alters the
companies’ speech by making it significantly more
difficult to tailor marketing messages to individual
prescribers. More broadly, the statute erects a
substantial barrier to efforts to identify the best
market for the drug companies’ communications.
The information disseminated in these detailing
visits that the State seeks to inhibit has significant
social value and is protected by the First
Amendment. Detailers discuss with physicians
important scientific matters relating to prescription
drugs, such as the results of clinical studies, and
summaries of indications and contraindications for
particular medications. C.A. App. A 125 (Cole);; A 197
(Wharton);; A 391 (Ciongoli). The very premise of
Section 4631 is that the audience for these
communications – physicians – will find the
information valuable and make important
prescribing decisions on the basis of it. Id. A 123
(Cole);; A 195-­198 (Wharton);; A 391 (Ciongoli). The
statute itself specifically recognizes that “physicians
frequently rely on information provided by
pharmaceutical representatives” in determining
“which drugs are the best treatment for particular
conditions.” Vt. Acts No. 80 § 1(13).
The information flow is moreover a two-­way
street, as drug companies through detailing benefit
from prescribers’ descriptions of the efficacy of
various treatments, information that the companies
use to improve medical care. The conversations are
often “engaging discussions over the latest science”
relevant to various treatments, and often involve
multiple physicians, who use the meetings as an
 15
opportunity “to discuss with each other how we treat
patients.” A 196 (Wharton).
In Edenfield v. Fane, 507 U.S. 761 (1993), the
Court invalidated a ban on solicitation by certified
public accountants because it “threaten[ed] societal
interests in broad access to complete and accurate
commercial information.” Id. at 766. “[T]he general
rule is that the speaker and the audience, not the
government, assess the value of the information
presented.” Id. at 767. More recently, in Thompson
v. Western States Medical Center, 535 U.S. 357
(2002), the Court held that the government may not
prohibit pharmacists from advertising the
availability of compounded drugs. “We have
previously rejected the notion that the Government
has an interest in preventing the dissemination of
truthful commercial information in order to prevent
members of the public from making bad decisions
with the information.” Id. at 374. See, e.g., Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 564 (2001);; 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489
(1996);; Rubin v. Coors Brewing Co., 514 U.S. 476,
481-­82 (1995).
It is no answer to assert that Vermont’s law is
targeted at the collection and use of prescription-­
history information, and does not ban the
conversations between detailers and physicians. This
Court has repeatedly held that the First Amendment
forbids both direct and indirect restraints on the
activities that are necessary to the communication
and sharing of information – the mechanics of
speaking. In Lorillard, supra, for example, the Court
gave no quarter to the claim that a regulation on the
“placement” of cigarette advertising merely regulated
 16
conduct, explaining that the First Amendment is
triggered whenever regulation of conduct “would
impose particularly onerous burdens on speech.” 533
U.S. at 564. That decision simply echoed this Court’s
repeated holdings that legislation regulating or
proscribing the actions necessary to engage in
communication triggers First Amendment scrutiny.
E.g., Minneapolis Star & Tribune Co. v. Minnesota
Comm’r of Revenue, 460 U.S. 575, 577, 592-­93 (1983)
(First Amendment applies to “use tax” on the cost of
paper and ink products consumed in the production
of a publication).
2. For two reasons, there is no merit to
petitioners’ attempt (Pet. 18) to recast Section 4631
as merely a “restriction on access to information.”
First, the very purpose of the statute is to inhibit
speech, not to protect privacy or otherwise neutrally
protect the confidentiality of prescription-­history
information. Petitioners are thus unwilling to
grapple with – or indeed, even mention – the
legislature’s express intention to alter the
“marketplace for ideas on medicine safety and
effectiveness.” Vt. Acts No. 80, § 1(6). “The findings
expressly state the legislature’s intent to interfere
with the marketplace of ideas to promote the
interests of the state.” Pet. App. 12. Indeed, “the
whole point of section 17 is to control detailers’
commercial message to prescribers.” Pet. App. 82a.
Second, the statute is not an effort by the
government to control the flow of information to
protect privacy. Because Vermont “does not prohibit
the wide public dissemination of [prescriber-­
identifiable (PI)] data,” “the statute plainly does not
 17
protect physician privacy.” Pet. App. 22a. As the
court of appeals explained,
Physician privacy might be protected if the
statute prohibited the collection and aggregation
of PI data for any purpose, or if the use of such
data were permitted only in rare and compelling
circumstances. The statute at issue here,
however, does not forbid the collection of PI data
in the first instance. Furthermore, the statute
does not ban any use of the data other than for
marketing purposes, including widespread
publication to the general public.
Id.
For both of those reasons, the State’s analogy to
the attorney-­client privilege, and restrictions on the
disclosure of information by “[i]nsurance companies,
financial institutes, and even utility companies” (Pet.
18-­19) is deeply flawed, as is its invocation of statutes
involving information held by, for example, financial
institutions, educational records, and health care
information (id. 32). Unlike Vermont’s law, those
legal principles and statutes rest on a neutral
interest in preserving confidentiality, rather than
restricting speech. Further, each makes the
prohibition on disclosure the rule, not the exception
tied to a particular category of speech. See, e.g., 15
U.S.C. § 6802 (providing right to opt out of financial
institution’s disclosure of “nonpublic personal
information to a nonaffiliated third party”) (emphasis
added);; 42 U.S.C. § 1320d-­6 (prohibiting the
disclosure of “individually identifiable health
information to another person” without authorization)
(emphasis added);; 47 U.S.C. § 551(c)(1) (cable
operator “shall take such actions as are necessary to
 18
prevent unauthorized access to such information by a
person other than the subscriber or cable operator”)
(emphasis added);; Cal. Fin. Code § 4052.5 (“a
financial institution shall not sell, share, transfer, or
otherwise disclose nonpublic personal information to
or with any nonaffiliated third parties” without
consent) (emphasis added). Vermont thus errs in
contending that the ruling below “calls into question
the constitutionality of numerous federal and state
laws that protect information privacy” (Pet. 1) or
otherwise conflicts with “decisions upholding” the
“constitutionality of privacy protections” (id. 16).
For the same reason, the State fails in its
attempted analogy to Seattle Times Co. v. Rhinehart,
467 U.S. 20, 32 (1984), which forbade the
dissemination of information “obtained by [a]
newspaper through pretrial discovery, where the trial
court had entered a protective order” (Pet. 19). The
information in Seattle Times was provided under
governmental compulsion – a court order. It was
moreover kept private between the parties in order to
maintain privacy rather than inhibit speech. Section
4631, by contrast, freely permits the distribution of
prescription-­history information for purposes other
than marketing.
Equally important, the analogy to privacy laws
fails because, contrary to the State’s suggestion (Pet.
i), the data collected and analyzed by the Publisher
Respondents does not “contain information about
patients.” The State’s claim that the data “reveals
substantial information about the doctor-­patient
relationship – including the treatment of individual
patients” (Pet. 4-­5) is false, to the extent that
Vermont hopes to suggest that respondents are in
 19
possession of any patient-­identifying information. In
fact, the Publisher Respondents never receive such
information, because pharmacy companies are
required to remove it before transferring the
prescription data. See 45 C.F.R. pts. 160 & 164;; C.A.
App. A 221 (Tierney). Thus, as the district courts
and Judge Lipez recognized in the New Hampshire
and Maine cases, statutes of this type do nothing to
advance patient privacy. IMS Health Inc. v. Ayotte,
550 F.3d 42, 85 (1st Cir. 2008) (Lipez, J., concurring
and dissenting) (“[T]he regulation does not in any
cognizable way touch on the privacy of the
examination room.”);; IMS Health Corp. v. Rowe, 532
F. Supp. 2d 153, 173 (D. Me. 2007) (“Regardless of
the opt-­out provisions of the new law, personal
patient information has been and will continue to be
encrypted and there is no evidence that the current
practices of the [Publisher Respondents] and the
pharmaceutical companies have had or realistically
could have any effect on patient confidentiality.”);;
IMS Health Inc. v. Ayotte, 490 F. Supp. 2d 163, 179
(D.N.H. 2007) (“[A]lthough the Attorney General
asserts that prescriber-­identifiable data is used to
intrude upon the doctor-­patient relationship, she
does not claim that the data is being exploited to
compromise patient privacy.”).
Nor is there merit to the State’s further
submission (Pet. 2) that Section 4631 escapes First
Amendment scrutiny because “[n]either doctors nor
patients voluntarily provide information to
pharmacies” but rather “are required to provide
information to receive necessary health care
services.” In fact, prescribers enter into relationships
with their patients, and patients visit pharmacies,
none of which is compelled by the government. The
 20
pharmacies in turn collect prescription information in
the ordinary course of their business, and they
indisputably would continue to do so in the absence of
any governmental record-­keeping requirement.
There is accordingly no merit to the State’s claim
(Pet. 31) that the First Circuit effectively conferred
upon respondents a constitutional right to receive
information. In fact, respondents “have not claimed a
First Amendment right to obtain information. They
challenge the restriction on their ability to purchase
and use information otherwise available to them but
for the State’s restriction. The statute prevents
willing sellers and willing buyers from completing a
sale of information to be used for purposes that the
state disapproves.” Pet. App. 16.
Thus, in this case, and unlike in LAPD v. United
Reporting Publishing Corp., 528 U.S. 32 (1999), the
information is not in the government’s possession.
Rather, the State seeks to limit the acquisition and
use of information in the hands of pharmacies, data
miners, and pharmaceutical companies. “This is a
case about the extent of the permissible
governmental regulation of information in the hands
of private actors.” Pet. App. 17a. Contra Pet. 18-­19.
Nor, finally, is Vermont’s case materially
advanced by the fact that the statute permits
individual prescribers to formally advise the State
that they opt in to the use of their prescription-­
history information in marketing. That requirement
presents a significant obstacle to respondents’ speech.
A state could not, absent a significant interest,
ordinarily require every audience to notify the
government in advance that it wants to receive
particular speech. Instead, the ordinary rule is that
 21
the audience can simply make the choice whether to
listen. In this context, every prescriber can choose
whether to receive detailing visits. Moreover, the
American Medical Association permits prescribers to
specify that their prescription-­history information not
be used in marketing;; the State has made no showing
that this non-­governmental program is inadequate.
B. Vermont’s Restriction On The Transfer
And Use Of Prescriber Information Does
Not Advance A Legitimate State
Interest.
Vermont does not make a serious attempt to
argue that its statutory scheme can survive First
Amendment scrutiny. The legislature’s openly stated
rationale for enacting Section 4631 is its desire to
correct what it perceives as a “massive imbalance in
information” within the “marketplace for ideas on
medicine safety and effectiveness.” Vt. Acts No. 80,
§§ 1(4), 1(6). Thus, as the Second Circuit properly
recognized, “the statute seeks to alter the
marketplace of ideas by taking out some truthful
information that the state thinks could be used too
effectively.” Pet. App. 26a. Vermont is, quite
literally, attempting to make it more difficult for drug
companies and physicians to have an intelligent
conversation. This Court has specifically rejected the
“assumption that doctors would prescribe
unnecessary medications” on the basis of drug
advertising, because it “amounts to a fear that people
would make bad decisions if given truthful
information.” Western States, 535 U.S. at 359.
Beyond that, Vermont’s effort to protect
prescribers from truthful messages during voluntary
conversations with detailers does not advance any
 22
legitimate state interest. Indeed, if the government
has no cognizable interest in prohibiting
professionals such as accountants from soliciting lay
persons (Edenfield v. Fane, supra), then it manifestly
has no such interest in the context of pharmaceutical
companies’ discussions with highly trained
prescribers regarding the merits of particular drugs.
See Brief for Coalition for Healthcare Communication
as Amicus Curiae Supporting Petitioners at 16,
Ayotte, 129 S. Ct. 2864 (08-­1202) (“A paternalistic
desire to have consumers, let alone industry
professionals, make different market choices among
goods and services is not the type of interest that can
sustain a restriction on truthful and non-­misleading
commercial speech.”). That is all the more true given
that physicians can – and regularly do – simply
decline to meet with a drug company representative.
Thus, in practice, Vermont’s law bars only truthful
communications between drug companies and
knowledgeable and willing prescribers desirous of the
information.
Likewise, Vermont’s avowed desire to correct the
“imbalance in information” created by drug
companies’ financial wherewithal directly parallels
the premise repeatedly rejected by this Court that
the government may limit individual expenditures in
political campaigns. Under the First Amendment,
the government may not inhibit speech just because
it considers its influence to be economically outsized.
McConnell v. Fed. Election Comm’n, 540 U.S. 93, 217-­
18 (2003);; Fed. Election Comm’n v. Massachusetts
Citizens for Life, Inc., 479 U.S. 238, 263 (1986);;
Buckley v. Valeo, 424 U.S. 1, 39-­51 (1976).
The disconnect between Section 4631 and
 23
Vermont’s legitimate interests is particularly
apparent given the lack of evidence of the need for
such legislation or its effectiveness. Before the
Second Circuit, Vermont sought to justify the statute
on the ground that it advanced a state interest in
“medical privacy,” which, the court noted, “is actually
two distinct interests. The first is an interest in the
integrity of the prescribing process itself, and the
second is an interest in preserving patients’ trust in
their doctors by preventing patients from believing
that their physicians are inappropriately influenced
by . . . data-­driven marketing.” Pet. App. 23a. The
court correctly found no evidence suggesting that
Section 4631 advanced those interests. “Vermont’s
own expert was unaware of any instance in which a
detailing interaction caused a doctor to prescribe an
inappropriate medication.” Id. And, “[t]o the extent
that the record might suggest that [prescriber-­
identifiable] data has damaged the relationship
between doctors and patients, the evidence is either
speculative or merely indicates that some doctors
might not approve of detailing or the use of
[prescriber-­identifiable] data in detailing.” Id.
Furthermore, even if Vermont’s asserted
interests were legitimate, Section 4631 would still
fail First Amendment scrutiny because it
discriminates on the basis of the speaker’s viewpoint.
The statute bars the dissemination of prescription
information for the purpose of advocating the use of
brand-­name drugs. At the same time, however, the
State has adopted its own “counter detailing”
program, which uses prescription-­history data to
discourage brand-­name drug use and promote the use
of generics. Vt. Stat. Ann. tit. 18, § 4622. Vermont
also permits insurance companies to use the same
 24
data to promote “formulary compliance.” Id.
§ 4631(e)(1). Those companies routinely use
prescription-­history information to locate prescribers
and encourage them to prescribe generics over brand-­
name medications. C.A. App. A 188 (Kolassa)
(“[I]nsurance 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.”).
If the First Amendment means anything, it
means that the government cannot so significantly
disfavor the one side in a debate that it disfavors.
Vermont’s statute creates “a bias in the democratic
process designed to achieve the state’s desired result,
which is exactly the opposite of what the First
Amendment is intended to do.” Brief for Pacific
Legal Foundation et al. as Amicus Curiae Supporting
Petitioners at 15, Ayotte, 129 S. Ct. 2864 (08-­1202).
“Even under the degree of scrutiny that we have
applied in commercial speech cases, decisions that
select among speakers conveying virtually identical
messages are in serious tension with the principles
undergirding the First Amendment.” Greater New
Orleans Broad. Ass’n v. United States, 527 U.S. 173,
193-­94 (1999).
C. Vermont’s Law Is Not Narrowly
Tailored.
The Second Circuit also correctly held that
Section 4631 fails under Central Hudson’s narrow
tailoring prong. Vermont’s statute bears no
reasonable “fit” in relation to the State’s asserted
interests, see Greater New Orleans, 527 U.S. at 188
(1999), but in fact is grossly overinclusive.
 25
Far from confining its focus to detailing that
drives up health care costs, Section 4631 applies to
detailing that either does not implicate or actually
furthers the State’s interests. The statute is not
limited to restricting those instances of detailing that
cause prescribers to make inappropriate prescribing
decisions. The State’s broad-­brush assertion that
“[n]ew drugs” are “also riskier, because their use,
risks, and side effects are not yet fully understood”
(Pet. 9) is unsupported by the record and contrary to
the experience of modern health care. The statute
moreover equally applies when the detailing
identifies a less expensive alternative medication and
when it conveys valuable information about drug
treatments that improve public health, which is itself
a significant state interest. See Pet. App. 30a (“The
statute prohibits the transmission or use of
[prescriber-­identifiable] data for marketing purposes
for all prescription drugs regardless of any problem
with the drug or whether there is a generic
alternative.”). In such instances, the statute inhibits
speech without furthering – and often while
undermining – Vermont’s own claimed interests.
The Second Circuit also properly recognized that
Vermont had failed to meet its burden of showing
that its interests could not be as well served by a less
speech-­restrictive alternative. One such option is
the State’s “counter-­detailing” program, which is
designed to encourage doctors to prescribe generic
drugs. Alternatively, Vermont “could mandate the
use of generic drugs as a first course of treatment,
absent a physician’s determination otherwise, for all
those patients receiving Medicare Part D funds.” Id.
30a-­31a. The State also could look to the array of
cost-­containment measures in effect in other states
 26
that do not restrict speech, many of which Vermont
has not adopted. 2
The statute is equally under-­inclusive. Vermont
objects to the effectiveness of detailing visits, but
those communications are not prohibited so long as
they are not conducted on the basis of prescription-­
history information. A drug company thus remains
free to promote expensive therapies for which generic
substitutes exist, or for which safety issues have been
raised.
In sum, the Second Circuit properly concluded
that Section 4631 violates the First Amendment,
even under the intermediate scrutiny applicable to
regulations of commercial speech.
II. Certiorari Is Nonetheless Warranted
Because the Ruling Below Directly Conflicts
With The Settled Precedent Of The First
Circuit.
The Second Circuit recognized that its decision is
irreconcilable with the precedent of the First Circuit,

2 See, e.g., D.C. Code § 48-­831.04 (2006) (requiring use of

aggregate purchasing to negotiate lower prices of prescriber
drugs);; Fla. Stat. Ann. § 465.025 (2006) (requiring pharmacists
to substitute generic drugs for bioequivalent brand-­name
drugs);; N.H. Rev. Stat. Ann. § 318:47-­d (2003) (authorizing
pharmacists to substitute bioequivalent generic drugs);; Me. Rev.
Stat. Ann. tit. 22, § 2697 (2006) (prohibiting profiteering in
prescription drugs);; Me. Rev. Stat. Ann. tit. 22, § 2700-­A (2006)
(providing for consumer education about prescription drugs);;
Minn. Stat. § 151.461 (1994) (prohibiting gifts from drug
manufacturers to health care practitioners);; Vt. Stat. Ann. tit.
33, § 2005a (2006) (requiring sales representatives to disclose
prices to prescribers);; W. Va. Code Ann. § 5-­16C-­9 (2006)
(setting forth a variety of strategies to reduce unnecessary
prescription drug costs).
 27
which has upheld similar statutes on the theory that
prescription-­history information merits little, if any,
First Amendment protection. That conflict on an
important question of federal constitutional law is
entrenched and can be resolved only by this Court.
1. The Second Circuit in this case expressly
rejected the contrary precedent of the First Circuit.
The Second Circuit concluded that Vermont’s statute
must be subject to significant constitutional scrutiny
because it “is . . . clearly aimed at influencing the
supply of information, a core First Amendment
concern.” Pet. App. 16a. The Second Circuit also
rejected Vermont’s reliance on the First Circuit’s
conclusion that a State could permission pursue an
interest in altering the “imbalance in information”
available to prescribers by “put[ting] the state’s
thumb on the scales of the marketplace of ideas.” Id.
25a.
Like Vermont’s Section 4631, the New
Hampshire statute sustained by the First Circuit in
Ayotte prohibited the transfer or use of prescription
data for the purpose of “any activity that could be
used to influence sales or market share of a
pharmaceutical product.” N.H. Rev. Stat. § 318:47-­f.
While the Ayotte court acknowledged that the
dissemination of factual information has been held
protected by the First Amendment, it deemed that
principle inapplicable in “a situation in which
information itself has become a commodity.” Ayotte,
550 F.3d at 53. In that circumstance, the First
Circuit concluded, the transfer of information is
entitled to no greater First Amendment protection
than a shipment “of, say, beef jerky.” Id.
On the basis of Ayotte, the First Circuit
 28
subsequently upheld Maine’s similar prescription
information law. IMS Health Inc. v. Mills, 616 F.3d
7, 19 (1st Cir. 2010). The Maine statute provides
that pharmacies, data publishers, and others may not
use or sell prescriber-­identifiable information “for
any marketing purpose” if a prescriber so elects. Me.
Rev. Stat. Ann. tit. 22, § 1711-­E(2-­A).
In conflict with the Second Circuit’s decision in
this case, the First Circuit held in Ayotte that New
Hampshire was free to “level the playing field” in the
debate over the benefits of brand-­name medications
by limiting drug companies’ access to information,
and thereby “improve the quality” of the discussions
between detailers and physicians. 550 F.3d at 48, 54.
The Second Circuit also conducted a
substantially more searching assessment of whether
the State had a factual basis for adopting its
prescription restraint law. Looking to the record
developed at trial, the court of appeals in this case
found that “Vermont has not shown any effect on the
integrity of the prescribing process or the trust
patients have in their doctors from the use of
[prescriber-­identifiable] data in marketing.” Pet.
App. 23a. Although the State presented some
testimony at trial that sought to show that less
speech-­restrictive alternatives would not sufficiently
advance its asserted interests, the court found that
“the testimony fell far short of demonstrating that
the alternatives would be inadequate.” Id. 33a.
Further, the court noted that although the statute
bars the use of prescriber data to market any brand-­
name prescription drug, the State provided no
evidence about whether particular brand-­name
medications are more or less effective than their
 29
generic counterparts. Thus, “[e]ven if the Court
defers to the legislature’s determinations, those
determinations cannot support banning speech in
circumstances that the state’s evidence does not
address.” Id. 30a.
In stark contrast, the First Circuit held that New
Hampshire’s parallel statute sufficiently advanced
the State’s asserted interests, notwithstanding that
“there was no direct evidence on” the statute’s effect
on health care costs. Ayotte, 550 F.3d at 57. Despite
those deficiencies, the First Circuit concluded that
“this is more a matter of policy than of prediction,” id.
at 58, so that the appropriate course was to “defer to
the New Hampshire legislature,” id. at 59. In the
First Circuit’s view, “[a] state need not go beyond the
demands of common sense to show that a statute
promises directly to advance an identified
governmental interest.” Id. at 55. The First Circuit
deems intermediate scrutiny to be satisfied when a
state relies on “common sense” to show that a statute
“promises” to advance such interests. Id. at 55.
The First Circuit denied applications for
rehearing en banc in both Ayotte and Mills. The
court of appeals’ ruling in Mills moreover eliminated
any prospect that the court might revisit its prior
precedent in light of this Court’s intervening decision
in United States v. Stevens, 130 S. Ct. 1577 (2010).
Mills squarely “reject[ed]” the contention that
Stevens “undermines Ayotte’s holding.” Mills, 616
F.3d at 20. While acknowledging that Ayotte “did
suggest that any speech regulated was of such
minimal value that it likely fell outside of First
Amendment protections,” the First Circuit believed
that statement was consistent with Stevens because
 30
it “was in service of Ayotte’s holding that the New
Hampshire statute regulated conduct, not speech, an
argument not at issue in Stevens.” Id.
Nor is there any prospect that the Second Circuit
will resolve the conflict through en banc proceedings.
That court has a nearly inviolate practice of reserving
en banc review to intra-­circuit conflicts. See
generally Jon O. Newman, In Banc Practice in the
Second Circuit: The Virtues of Restraint, 50 Brook. L.
Rev. 365 (1984). The State of Vermont accordingly
made the sound judgment to seek review directly in
this Court. Equally important, because no other
state in the Second Circuit has adopted a similar
statutory scheme, the court of appeals will never
again have the opportunity to decide the question
presented.
The current state of the law is particularly
intolerable given that the Publisher Respondents are
the plaintiffs in all three of the federal appellate
rulings that make up the circuit conflict over the
constitutionality of prescription-­restraint statutes.
The Publisher Respondents now face irreconcilable
legal obligations, on the basis of conflicting
interpretations of the First Amendment, depending
entirely on the particular state to which specific data
happens to relate.
Further, the conflict has significant practical
consequences, as it materially and unjustifiably
interferes with respondents’ daily operations. The
Publisher Respondents operate data centers that
collect, aggregate, and publish information on a
national and international basis. Differentiating
among states to account for the inconsistent legal
regimes that now exist requires a significant
 31
expenditure of resources. Equally important, the
forced exclusion of data relating to certain states in
analyses of nationwide prescribing behavior creates
material administrative difficulties and threatens the
accuracy of the data respondents publish.
III. This Case Is An Ideal Vehicle To Decide The
Question Presented, Which Is Profoundly
Important.
Certiorari is further warranted because the
record in this case makes it an ideal vehicle in which
to resolve the constitutional question it presents.
The district court conducted a five-­day bench trial,
during which the parties presented extensive
documentary and testimonial evidence regarding the
operation of statutory schemes like the one at issue.
See Pet. App. 78a (“The parties presented testimony
from numerous witnesses and introduced reams of
exhibits, including the entire legislative history of Act
80.”). Particularly in a case in which a statutory
scheme rests on supposed effects of pharmaceutical
marketing upon prescribing behavior, it is essential
that the Court have the benefit of a concrete factual
record.
Review in this case is also proper because the
Vermont statutory scheme is representative of the
other legislative efforts to restrict the use of
prescriber information for marketing purposes.
Section 4631 operates in substantially the same
manner as the prescriber data laws in New
Hampshire and Maine, both of which prohibit the
transfer and use of such information for marketing
purposes. See N.H. Rev. Stat. § 318:47-­f (prescriber-­
identifiable information “shall not be licensed,
transferred, used, or sold by any pharmacy benefits
 32
manager, insurance company, electronic
transmission intermediary, retail, mail order, or
Internet pharmacy or other similar entity, for any
commercial purpose”);; Me. Rev. Stat. Ann. tit. 22, §
1711-­E(2-­A) (“a carrier, pharmacy or prescription
drug information intermediary may not license, use,
sell, transfer or exchange for value” prescriber
information “for any marketing purpose”). Accord
Pet. 26 (“The same concerns that led Vermont, New
Hampshire, and Maine to enact restrictions on the
commercial use of prescriber-­identifiable data have
prompted state legislators across the country to
consider similar measures.”). Thus, this case gives
the Court an ideal opportunity to provide guidance on
the constitutional issues common to all of these
statutory schemes, similar versions of which have
been introduced for consideration in the legislatures
of more than half the states.
Finally, this case presents issues of surpassing
importance. The record demonstrates that
pharmaceutical marketing provides substantial
public health benefits. Detailing directly contributes
to prescribers’ awareness of new treatment options,
and in turn helps to educate pharmaceutical
companies about prescribers’ experiences with
particular medications. That interchange of
information facilitates the adoption of vital new
treatments for a wide range of medical conditions,
and in turn immeasurably benefits the health and
well being of the Nation. The efforts of Vermont and
other States to interfere with that process trigger
public health concerns of the highest order. See C.A.
App. A 284 (Frankel) (Vermont’s law “will slow the
dissemination of new drugs and . . . people will die”);;
Brief for Council of American Survey Research Orgs.
 33
et al. as Amici Curiae Supporting Petitioners at 2,
Ayotte, 129 S. Ct. 2864 (08-­1202) (prescriber
information restrictions threaten “legitimate
pharmaceutical survey research by eliminating a
valuable information and data resource.”).
Moreover, the implications of Vermont’s
constitutional position extend far beyond drug
marketing. The evaluation and publication of factual
information is one of “the top ten emerging fields in
today’s technological world.” Tal J. Zarsky, “Mine
Your Own Business!”: Making the Case for the
Implications of the Data Mining of Personal
Information in the Forum of Public Opinion, 5 Yale J.
L. & Tech. 4 (2003). This speech has “entered a
golden age, whether being used to set ad prices, find
new drugs more quickly or fine-­tune financial
models.” Ashlee Vance, Data Analysts Are
Mesmerized by the Power of Program R, N.Y. Times,
Jan. 7, 2009, at B6. In the information-­based
economy of the twenty-­first century, the
accumulation, analysis, and distribution of various
forms of data is an activity of vital importance to a
broad and growing range of commercial enterprises.
See Brief for New England Legal Foundation et al. as
Amici Curiae Supporting Petitioners at 22, Ayotte,
129 S. Ct. 2864 (08-­1202) (“In our ‘information age,’
sales and other voluntary transfers of data by and
between businesses are fundamental to the efficient
operation of the free enterprise system and often
serve, as in this instance, societal needs as well as
the interests of individual businesses.”). The
proposition that such communications are wholly
devoid of constitutional protection, such that they
may be prohibited wholesale any time the
government disagrees with choices made by
 34
consumers of that information, raises far-­reaching
constitutional concerns that warrant this Court’s
prompt attention and guidance.
 35
CONCLUSION
For the foregoing reasons, the petition for a writ
of certiorari should be granted.

Respectfully submitted,

Thomas R. Julin Thomas C. Goldstein

Jamie Z. Isani Counsel of Record
Patricia Acosta Kevin R. Amer
HUNTON & WILLIAMS LLP AKIN GUMP STRAUSS HAUER
& FELD LLP
1111 Brickell Avenue 1333 New Hampshire
Suite 2500 Avenue, N.W.
Miami, FL 33131 Washington, DC 20036
(202) 887-­4000
Mark A. Ash [email protected]
MCGUIRE WOODS LLP
Robert B. Hemley
2600 Two Hanover
Matthew B. Byrne
Square
GRAVEL AND SHEA
Raleigh, NC 27601
76 St. Paul Street, 7th Fl.
Burlington, VT 05402

December 15, 2010