The marketing community has won a major victory in a U.S. Supreme Court decision involving data mining. In a 6-3 decision in Sorrell v. IMS Health, Inc., No. 10-779, the Supreme Court struck down a Vermont law that restricted the use of prescriber histories for purposes of marketing or promoting pharmaceutical products to physicians. In addition, the decision effectively reversed two earlier Circuit Court decisions that upheld similar laws in Maine and New Hampshire.
Dan Jaffe, Executive Vice President of Government Relations for the ANA (Association of National Advertisers) stated: “This is one of the most important advertising cases to come before the Supreme Court in a decade. It raised fundamental issues about what constitutes commercial speech and whether the government can undermine constitutional protection by simply labeling information used for marketing purposes as nothing more than a commodity. We are very pleased that the Supreme Court has made clear that data mining for marketing purposes is fully protected by the First Amendment. This case is important not only for the pharmaceutical industry but the ad community in general.”
The Sorrell case was a challenge to a Vermont law that restricts the use of prescriber-identifiable data for purposes of marketing or promoting prescription drugs. The Court of Appeals for the Second Circuit struck down the law, holding that it violated the First Amendment by unnecessarily restricting commercial speech. That decision conflicted with two recent decisions of the First Circuit which upheld similar laws in Maine and New Hampshire.
ANA filed a “friend of the court” brief with the Supreme Court in March urging the Court to strike down the Vermont law. The brief was written by Robert Corn Revere, noted First Amendment attorney with the law firm Davis Wright Tremaine LLP. We were joined in the brief by the American Advertising Federation (AAF) and the American Association of Advertising Agencies (AAAA).
Jaffe stated: “This case is a strong reaffirmation of the substantial protection that advertising enjoys under the First Amendment and should be very helpful in other commercial speech cases pending in the courts. While this case involves data mining for pharmaceutical companies, it has important implications for the ability of all marketers to collect and use information to target their messages to the right audience.”
A copy of the industry brief is <a href="http://www.ana.net.advocacy/getfile/16318″>available here.
About the ANA
Founded in 1910, the ANA (Association of National Advertisers) leads the marketing community by providing its members with insights, collaboration, and advocacy. ANA’s membership includes 400 companies with 9,500 brands that collectively spend over $250 billion in marketing communications and advertising. The ANA strives to communicate marketing best practices, lead industry initiatives, influence industry practices, manage industry affairs, and advance, promote, and protect all advertisers and marketers. For more information, visit www.ana.net.
