[First Word]- The US Supreme Court on Tuesday questioned whether Vermont’s decision to enact laws that prohibit the use of prescription drug records for marketing purposes violates free-speech rights. All states currently allow pharmacies to collect and pass on data about the prescription-writing habits of physicians, but Vermont, Maine and New Hampshire banned use or publication of the information for any marketing purposes.

In the case of Vermont’s Pharmaceutical Confidentiality Law, which is being challenged by three medical data mining companies and PhRMA, legislators used language in their bill to say they were trying to correct a perceived “imbalance” in the “marketplace of ideas.”

However, some justices questioned whether the goal of the law was instead aimed at lowering drug costs by restricting the transfer of information from brand name pharmaceutical companies while placing no similar restrictions on the state, insurance companies and others who favour the increased use of generic drugs. “You want to lower your health care costs, not by direct regulation, but by restricting the flow of information to the doctors, by censoring what they can hear to make sure they don’t have full information, so they will do what you want them to do when it comes to prescribing drugs,” commented Chief Justice John Roberts. Justice Ruth Bader Ginsburg added that “this court has said that you can’t lower the decibel level of one speaker so that another speaker… can be heard better.”

Bridget Asay, of Vermont’s attorney general’s office, argued that the case was less about free speech, and more about the level of control physicians should have over their relationship with patients. While none of the justices directly defended the law, several questioned whether states could enact other measures to protect physician privacy, such as adopting a rule that allows physicians to opt out of their prescribing information being made commercially available or barring pharmacies from selling the data to anybody. Justice Antonin Scalia added that the law didn’t accomplish anything doctors couldn’t do on their own, noting that a physician “could achieve the same objective, could he not, by simply refusing to talk to the marketer?”

The law in Vermont was previously struck down in a 2-1 ruling by a federal appeals court, with the majority ruling that the measure violates the First Amendment because it restricts the speech rights of data miners without directly advancing legitimate state interests, but another appeals court rejected the constitutional challenge and upheld similar laws in Maine and New Hampshire.

The Obama administration and 35 states have voiced their support for Vermont in defending the measure. A final ruling in the case is expected by the end of June.