District Court Amicus Brief of the National Legislative Association on Prescription Drug Prices, the New Hampshire Medical Society, and Prescription Policy Choices in Support of Defendant's Objection to Plaintiff's Motion for Preliminary Injunction

29 Pages Posted: 17 Jan 2012

See all articles by Sean Flynn

Sean Flynn

American University - Washington College of Law; Program on Information Justice and Intellectual Property

Derek D. Lick

affiliation not provided to SSRN

Date Written: December 15, 2006

Abstract

Plaintiffs in this case, IMS Health Inc. and Verispan, LLC, seek a preliminary injunction to prevent the enforcement of the New Hampshire Prescription Confidentiality Act, N.H. Rev. Stat. Ann. § 318:47-f (“New Hampshire Act” or “Act”). That Act protects consumers and the privacy interests of doctors by banning the increasingly common practice of using doctor-identifying information in prescription records to facilitate targeting of pharmaceutical marketing and gifts toward doctors who prescribe the most expensive drugs for their patients. This practice raises drug costs for all New Hampshire residents and compromises the professional autonomy of doctors.

Plaintiffs ask this Court for the extraordinary relief of enjoining the enforcement of an Act, passed with nearly unanimous support in the New Hampshire Legislature and by the governor, absent any actual application of the Act against an infringing party. This brief addresses the failure of the plaintiffs to show that they are likely to succeed on the merits of either their First Amendment or Commerce Clause claim.

In regard to the First Amendment, plaintiffs assert a radical and unprecedented argument that heightened, even strict, scrutiny must be applied to every state regulation that has the effect of limiting the sales of information products between private contracting parties. The Supreme Court has never held that the regulation of any information exchanged between contracting parties for commercial purposes is subject to First Amendment scrutiny, rather than the lenient rational-basis Due Process standard that has been applied to social and economic regulation since the downfall of Lochner v. New York, 198 U.S. 45 (1905). See Nebbia v. New York, 291 U.S. 502, 537 (1934) (“[T]here can be no doubt that upon proper occasion and by appropriate measures the state may regulate a business in any of its aspects.”). Indeed, the most recent Supreme Court case to address a law restricting the use of the content of a record for secondary purposes instructed that such laws are “a regulation of conduct,” not of speech. Bartnicki v. Vopper, 532 U.S. 513, 526-27 (2001). The plaintiffs’ argument would revive Lochner’s ghost, forcing courts to apply heightened scrutiny to interrogate the means and ends of every regulation of contract, antitrust conspiracy, confidentiality protection, corporate reporting, consumer product safety labeling, and other regulation of business practices that involve exchanges of data or information between private parties. The Supreme Court has admonished against such “reliance on the First Amendment as a basis for reviewing economic regulations.” Glickman v. Wileman Brothers & Elliot, Inc., 521 U.S. 457, 476 (1997); Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 591, 589 (1980) (Rehnquist, J., dissenting) (warning against using the commercial speech doctrine “to resurrect the discredited doctrine of cases such asLochner” to strike economic regulations “based on the Court’s own notions of the most appropriate means for the State to implement its considered policies”).

Should this Court find that the First Amendment is applicable to New Hampshire’s regulation, then the most lenient standard of First Amendment review should be applied, i.e. that reserved for “speech solely in the individual interest of the speaker and its specific business audience.” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 762 (1985). Under this deferential standard, the Act must be upheld if it is reasonably tailored to a substantial government interest. The Act undoubtedly meets this standard. It directly and narrowly serves the substantial interests of the state assuring the health and welfare of its citizens and reducing costs that must be borne by the state, by protecting doctors (and thus their patients) from inappropriate individualized targeting. And it does so without burdening the ability of pharmaceutical companies to craft and deliver any message they wish to inform doctors and patients about their products.

Plaintiffs also urge this court to accept an expansive and radical view of the deregulatory reach of the dormant Commerce Clause, claiming that the Clause’s infamous “great silences” may be used as a basis to strike down, on a facial challenge, legislation which unquestionably can be applied to in-state conduct and interpreted to regulate transactions that take place with persons in New Hampshire. Because plaintiffs cannot show that every instance of the Act necessarily regulates commercial activity undertaken wholly outside of the State of New Hampshire, their facial challenge must fail.

This brief adopts, and thus does not repeat, the State of New Hampshire’s response to the Plaintiffs’ third argument – that the detailed and well-defined terms of the Act are unconstitutionally vague.

Keywords: Ptivacy, First Amendment, pharmaceutical marketing

Suggested Citation

Flynn, Sean and Lick, Derek D., District Court Amicus Brief of the National Legislative Association on Prescription Drug Prices, the New Hampshire Medical Society, and Prescription Policy Choices in Support of Defendant's Objection to Plaintiff's Motion for Preliminary Injunction (December 15, 2006). Available at SSRN: https://ssrn.com/abstract=1986837 or http://dx.doi.org/10.2139/ssrn.1986837

Sean Flynn (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

Program on Information Justice and Intellectual Property

4300 Nebraska Avenue N.W.
Washington, DC 20016
United States

Derek D. Lick

affiliation not provided to SSRN ( email )

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