The Constitutionality of Restricting the Use of Prescriber-Identifiable Data in Pharmaceutical Detailing After Citizens United v. FEC

Abstract

Each year, the pharmaceutical industry spends billions of dollars dispatching sales representatives to meet with health care providers in order to promote their company’s drug products. To assist these representatives to efficiently and effectively deliver their sales messages, pharmaceutical companies rely on data concerning individual physician prescribing habits. However, several states are considering, and a few states have enacted, legislation that restricts the ability of pharmaceutical companies to utilize such data for commercial purposes. Such legislation is a response to concerns over the rising costs of prescription drugs, the close relationship between the pharmaceutical industry and the medical profession, and concerns over the privacy of patient information. To proponents of regulation, the use of the data allows pharmaceutical companies to manipulate physicians into prescribing their products. To date, such legislation has withstood legal challenges from the industry, which claimed that such restrictions violate their First Amendment rights to free speech. However, it is likely only a matter of time before the question reaches the Supreme Court of the United States, and the Court’s recent decision in Citizens United v. FEC suggests that such restrictions are likely to be held unconstitutional.