A critical analysis of Sorrell v. IMS Health, Inc.: Pandora's box at best

Sorrell v. IMS Health, Inc. ("IMS Health"), a remarkable health care case with resounding First Amendment and economic repercussions, features the clashing interests of the State of Vermont and aggressive free market players from the pharmaceutical and data mining industries in a constitutional battle over Free Speech. In 2007, Vermont enacted Act 80, The Confidentiality of Prescription Information Act, prohibiting the sale, disclosure, and use of pharmacy records. Together with two other data miners and PhRMA, an association of brand-name drug manufacturers, IMS Health successfully challenged the constitutionality of Act 80 on First Amendment grounds. This article examines the legal arguments of IMS Health and Act 80 and analyzes why IMS Health stands out for potentially challenging the traditional doctrine of commercial speech and the resulting legal implications. After reviewing the Supreme Court's reasoning, the article concludes that, although the Supreme Court reached the appropriate outcome, it did so by unjustifiably departing from the established legal doctrine of commercial speech and the American tradition of consumer protection. At best, IMS Health's reasoning opens a legal Pandora's Box potentially leading to an onset of new commercial speech challenges; at worst, it manufactured a Trojan Horse aimed at eroding the traditional regulatory safeguards that maintain a balance between the needs of consumers and corporations alike.