Data firms, pharmas upbeat on Vermont data ban chances
“Based on the tenor of the questioning that I saw and the body language of certain justices, there appear to be five solid conservative votes,” said Christopher Mohr, an attorney with Meyer, Klipper & Mohr, which served as counsel on an amicus brief in support of the data firms. Coalition for Healthcare Communication head John Kamp concurred, saying: “The tenor of the Justices so clearly signaled defeat for Vermont that we may see a decision before June.”
Three of the four most reliably conservative justices – Chief Justice Roberts and Justices Scalia and Alito – skewered Vermont's arguments on free speech grounds from the start.
“You want to lower your healthcare costs, not by direct regulation, but by restricting the flow of information to doctors … by censoring what they can hear to make sure they don't have full information, so that they will do what you want them to do when it comes to prescribing drugs,” said Chief Justice Roberts. The court's right-leaning swing vote, Justice Kennedy, followed up by asking “In effect, aren't you doing this by regulating speech?”
The court's liberal wing was scarcely more sympathetic to Vermont, with Justice Sotomayor questioning why the law was needed if doctors could already opt out of having their data used commercially, and Justice Ginsburg wondering: “If [advantaging generics] is the purpose, why doesn't that run up against what this court has said that you can't lower the decibel level of one speaker so that another speaker … can be heard better?”
Two dozen states have similar legislation pending, and New Hampshire and Maine have laws banning commercial provision of prescriber data on the books.