Durk Pearson & Sandy Shaw’s®
Life Extension NewsTM
Volume 15 No. 2 • March-April 2012

Pearson v. Shalala Makes It to the U.S. Supreme Court — Sort Of

Well, it was another commercial speech case that arrived at the Supreme Court not too long ago, but the basic issues were very similar to those in Pearson v. Shalala and the First Amendment won by a vote of 6–3 (very surprisingly, Sotomayer voted with the majority to uphold the free speech rights of pharmaceutical companies while, unsurprisingly, Breyer, Ginsburg, and Kagan dissented). The case was Sorrell, Attorney General of Vermont et al v. IMS Health, Inc. et al (No. 10-779, decided June 23, 2011.

In that case, the State of Vermont wanted to prohibit the use of prescriber-identifying information by pharmaceutical companies to help determine the interests of individual physicians in order to better market their drugs. The prescriber-identifying information is freely available to anybody in Vermont and the State had not imposed any restrictions on its use except in the case of pharmaceutical companies. Therefore, it was a clear case of the government discriminating against particular speakers, which is not permitted under the First Amendment and its jurisprudence. The Supreme Court held the Vermont law to the standards of strict scrutiny under the First Amendment. We are quite confident that Pearson v. Shalala would be upheld (e.g., it is unconstitutional, under the First Amendment, for the FDA to prohibit the communication of truthful nonmisleading information about dietary supplements) if it were to be argued before the Supreme Court. With this new decision in hand, we hope that we will see some more aggressive First Amendment litigation against the FDA which is still limiting communication of most truthful and nonmisleading information to the public by manufacturers and vendors when it pertains to dietary supplements and foods.

A few quotes from the majority decision are given below. Note: we didn’t include most of the case citations. You can get all that from the published Court decision.

“Heightened judicial scrutiny is warranted.” (pg. 2 of the syllabus)

“But ‘the fear that people would make bad decisions if given truthful information’ cannot justify content-based burdens on speech.” (pg. 4 of syllabus)

“Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard.”

“The First Amendment requires heightened scrutiny whenever the government creates ‘a regulation of speech because of disagreement with the message it conveys.’”

“An individual’s right to speak is implicated when information he or she possesses is subjected to ‘restraints on the way in which the information might be used’ or disseminated.”

“This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e.g., Bartnicki, supra, at 527 (‘[I]f the acts of “disclosing” and “publishing” information do not constitute speech, it is hard to imagine what does fall within that category’; Rubin v. Coors Brewing Co., 514 U.S. 476, 481 (1995)(‘information on beer labels’ is speech) ...”

“... Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers.”

“If pharmaceutical marketing affects treatment decisions, it does so because doctors find it persuasive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it.”

“The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44Liquormart, supra, at 503 (opinion of Stevens, J.)

“The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unburdened those speakers whose messages are in accord with its own views. This the State cannot do.”


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