In a “friend of the court” brief filed today in IMS Health v. Ayotte, ANA has asked the United States Supreme Court to consider a court of appeals decision that has broad implications regarding how advertising and marketing activities are analyzed under the First Amendment to the U.S. Constitution.
A New Hampshire law, the Prescription Information Law (PIL), provides that “[r]ecords relating to prescription information…shall not be licensed, transferred, used or sold…for any commercial purpose,” which it defines broadly to include “advertising, marketing, promotion or any activity that could be used to influence sales or market share of pharmaceutical products.” The law is designed to prevent the use of a physician’s prescription history to market prescription drugs to doctors, which the legislature claimed was a factor in the increasing prices paid by consumers for prescription drugs. To prevent their use, the law therefore bans the gathering and dissemination of prescription histories.
The First Circuit Court of Appeals held that the PIL was immune from First Amendment scrutiny since it regulates “conduct” and not “speech.” Instead, the appeals court considered the activity of data collection as a “commodity” similar to regulating “beef jerky,” rather than the dissemination of truthful, nonmisleading information. Since the court of appeals held that the protections afforded to commercial speech under the Supreme Court’s Central Hudson test were not applicable in this case, the PIL was examined under a lesser level of scrutiny (known as rational basis scrutiny) and upheld.
Our brief strongly argues that this decision is contrary to a long line of Supreme Court precedents and strikes at the heart of over thirty years of jurisprudence which has gradually increased the level of protection afforded commercial speech. The Supreme Court has long granted First Amendment protection to the entire communication enterprise, from information gathering through to its dissemination. All speech involves some sort of expressive conduct, from speaking to typing and printing. If the First Circuit’s decision is permitted to stand, whole portions of the dissemination of truthful, nonmisleading speech for advertising and marketing purposes would be analyzed under a lesser standard of constitutional scrutiny and open to further overly restrictive regulation. By drastically blurring the lines between conduct and speech the court of appeals threatens to severely undermine the foundations of speech protection in the United States.
Additionally, our brief asks the Court to clarify the definition of commercial speech, making clear the proper scope of the Central Hudson test. Currently, there is a split among the lower appellate courts as to whether it covers speech that does “no more than propose a commercial transaction” or whether it applies more generally to “expression related solely to the economic interest of the speaker and its audience.” This case could provide a forum to remedy definitional issues left open when the Court declined to hear the Nike case in 2003. In that case, the California Supreme Court applied a broad definition of commercial speech to Nike’s public relations campaign in response to allegations of child labor and unfair trade practices overseas, and denying it full First Amendment protection. A settlement in that case, however, left these important issues unresolved.
Finally, this case also deals with a fundamental issue of the ability of advertisers to be able to develop and utilize data to target ads to consumers in an efficient manner, which provides a key basis for effective communication in a free society.
If the Supreme Court decides to take the case, it will hear arguments in its 2010 term starting in October at the earliest.
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