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When the First Amendment and Public Health Collide: The Court's Increasingly Strict Constitutional Scrutiny of Health Regulations That Restrict Commercial Speech
Published online by Cambridge University Press: 06 January 2021
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In Sorrell v. IMS Health Inc., the Supreme Court departed from traditional commercial speech doctrine in striking down Vermont's Prescription Confidentiality Law under a heightened level of scrutiny. The Prescription Confidentiality Law was Vermont's attempt to prevent pharmacies from sharing information about doctors’ prescribing habits with drug manufacturers without the consent of the doctor. The law aimed to protect doctors, as well as to promote public health, by regulating speech and conduct that is arguably commercial in nature. The Court has purported to subject regulation of commercial speech to only an intermediate level of scrutiny since Virginia State Board of Pharmacy v. Virginia Citizen's Consumer Council, Inc. established that as the proper standard. Thus, it was inconsistent for the Court to categorize the commercial speech regulation in Sorrell as “content-based” and thus subject to a stricter level of review. The invalidation of the Prescription Confidentiality Law, however, is only the most recent development in the Court's strict treatment of health-related regulations infringing on commercial speech. The Court has been moving toward a more stringent level of scrutiny since first applying the commercial speech doctrine in a public health context in Rubin v. Coors.
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References
1 131 S. Ct. 2653 (2011)
2 Id. at 2664.
3 425 U.S. 748 (1976).
4 Id. at 764.
5 Sorrell, 131 S. Ct. at 2669 (“Here … the State has conditioned privacy on acceptance of a content-based rule that is not drawn to serve the State's asserted interest.”).
6 514 U.S. 476 (1995).
7 Va. State Bd. of Pharmacy, 425 U.S. at 764. For a discussion of the different scholarly attacks on commercial speech doctrine, see Redish, Martin H., Commercial Speech, First Amendment, Intuitionism and the Twilight Zone of Viewpoint Discrimination, 41 LOY. L.A. L. REV. 67 (2007).Google Scholar
8 Va. State Bd. of Pharmacy, 425 U.S. at 770.
9 447 U.S. 557 (1980).
10 Id. at 563.
11 Id.
12 See, e.g., Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (striking down Vermont's Prescription Confidentiality Law); Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002) (striking provisions of the Food and Drug Administration Modernization Act of 1997); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (invalidating portions of the Massachusetts Attorney General's regulations regarding the advertising and sale of tobacco products); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (invalidating a Rhode Island statute banning the advertisement of liquor prices); Rubin, 514 U.S. 476 (striking section 5(e)(2) of the Federal Alcohol Administration Act).
13 Brown v. Entm't Merchs. Ass’n, 131 S. Ct. 2729, 2738 (2011).
14 See Cent. Hudson Gas & Elec. Corp., 447 U.S. 557. But cf. Valentine v. Chrestensen, 316 U.S. 52 (1942) (finding that the First Amendment does not protect commercial speech).
15 See Cent. Hudson Gas & Elec. Corp., 447 U.S. at 562-63.
16 See, e.g., Post, Robert, The Constitutional Status of Commercial Speech, 48 UCLA L. REV. 1 (2000)Google Scholar; Post, Robert, Prescribing Records and the First Amendment – New Hampshire's Data-Mining Statute, 360 NEW ENG. J. MED. 745, 745 (2009)CrossRefGoogle ScholarPubMed [hereinafter Post, Prescribing Records]; Waters, Brian J., A Doctrine in Disarray: Why the First Amendment Demands the Abandonment of the Central Hudson Test for Commercial Speech, 27 SETON HALL. L. REV. 1626 (1997).Google Scholar
17 See, e.g., Waters, supra note 16, at 1627-30. Waters argues that limited protection for commercial speech is unwarranted and allows the government to restrict commercial messages which are truthful, not misleading, and regard lawful activities. Id. The Central Hudson standard, he contends, has resulted in unpredictable results, leaving advertisers with scant guidance on how they are allowed to communicate with the public. Id.; see also Barnhart Driscoll, Lora E., Citizens United v. Central Hudson: A Rationale for Simplifying and Clarifying the First Amendment's Protections for Nonpolitical Advertisements, 19 GEO. MASON L. REV. 213, 214 (2011)Google Scholar (urging that a more workable strict scrutiny test replace Central Hudson's not “more extensive than necessary” standard).
18 See, e.g., Outterson, Kevin, Higher First Amendment Hurdles for Public Health Regulation, 365 NEW ENG. J. MED. e(13)(1), e(13)(3) (2011)CrossRefGoogle ScholarPubMed; Micah Berman, Kathleen Dachille & Julie Raiston Aoki, Sorrell and the Future of Commercial Speech Regulations, JURIST (Oct. 4, 2011), http://jurist.law.pitt.edu/forum/2011/10/berman-dachille-aoki-sorrell.php.
19 Id. at 776.
20 See id. at 755.
21 Id. at 762-68.
22 Id.
23 Id. at 762 (citation omitted).
24 Id. at 764.
25 Id. at 771.
26 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980).
27 Id. at 566.
28 Id.
29 Id. at 568-69.
30 Id. at 570 (“[T]he Commission's order suppresses speech that in no way impairs the State's interest in energy conservation.”).
31 Id.
32 514 U.S. 476 (1995).
33 Id. at 491; see Federal Alcohol Administration Act, 27 U.S.C. §§ 201-212 (2006).
34 Rubin, 514 U.S. at 478.
35 Id. at 479.
36 Id. at 485-91.
37 Id. at 487-90. According to Justice Thomas, “[t]he failure to prohibit the disclosure of alcohol content in advertising, which would seem to constitute a more influential weapon in any strength war than labels, makes no rational sense if the Government's true aim is to suppress strength wars.” Id. at 488.
38 Id. at 490-91.
39 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 500 (1996).
40 Id.
41 Id. at 505-07.
42 In 44 Liquormart, Justice Stevens explained that “there is no question that Rhode Island's price advertising ban constitutes a blanket prohibition against truthful, nonmisleading speech about a lawful product.” Id. at 504. His reasoning resembles the Court's reasoning in Central Hudson, that the “total ban” on promotional advertising by an electric utility was too over-inclusive to properly serve the State's end goal. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 570-71 (1980). In his concurring opinion in Central Hudson, Stevens referred to that absolute prohibition also as a “blanket ban.” Id. at 583.
43 533 U.S. 525 (2001).
44 Id. at 564.
45 Id. at 525. See Post, Prescribing Records, supra note 16, at 746-47 for an argument that the indeterminate nature of Central Hudson has resulted in judges improperly substituting their own judgments for the legislative judgments of elected branches.
46 535 U.S. 357 (2002).
47 Id. at 360.
48 Id. at 368.
49 Id. at 364-65.
50 Id. at 370-71.
51 Id. at 372.
52 Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011).
53 This footnote is empty.
54 Id.; see also IMS Health Inc. v. Sorrell, 630 F.3d 263, 267 (2d Cir. 2010), aff’d, 131 S. Ct. 2653 (2011).
55 IMS Health Inc., 630 F.3d at 267-77.
56 Id. at 276-79 (citing Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)).
57 IMS Health Inc. v. Sorrell, 631 F. Supp. 2d 434, 440 (D. Vt. 2009), rev’d, 630 F.3d 263 (2d Cir. 2010), aff’d, 131 S. Ct. 2653 (2011).
58 Id. at 454.
59 Id. at 454-55.
60 See IMS Health Inc., 630 F.3d at 268-69 (citing to the holdings of the First Circuit, District Court of Maine, and District Court of New Hampshire).
61 IMS Health Inc. v. Ayotte, 490 F. Supp. 2d 163, 165 (D.N.H. 2007), rev’d, 550 F.3d 42 (1st Cir. 2008).
62 Id. at 180-83.
63 IMS Health Corp. v. Rowe, 532 F. Supp. 2d 153, 157 (D. Me. 2007), rev’d sub nom. IMS Health Inc. v. Mills, 616 F.3d 7 (1st Cir. 2010).
64 IMS Health Inc. v. Ayotte, 550 F.3d 42, 64 (1st Cir. 2008) (upholding the New Hampshire statute); IMS Health Inc. v. Mills, 616 F.3d 7, 13-14 (1st Cir. 2010) (upholding the Maine statute).
65 Ayotte, 550 F.3d at 50-54.
66 Mills, 616 F.3d at 18-19.
67 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2663-64 (2011).
68 Id.
69 Id. at 2672.
70 See id. at 2671.
71 Id. at 2677.
72 Id. at 2681-82.
73 See Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001) (upholding state labeling law); N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009) (holding that rational basis scrutiny is the appropriate standard in determining whether a city law requiring certain restaurants to post caloric content information on their menus and menu boards violates the First Amendment).
74 See, e.g., CAL. HEALTH & SAFETY CODE § 114094 (West 2012) (requiring restaurants that are part of a chain with twenty or more facilities to post nutritional information); VT. STAT. ANN. tit. 18 § 4086 (West 2011) (requiring restaurants with twenty or more facilities to post caloric content); N.Y.C. BD. OF HEALTH, NOTICE OF ADOPTION OF AN AMENDMENT (§81.50) TO ARTICLE 81 OF THE NEW YORK CITY HEALTH CODE (2006), available at http://www.nyc.gov/html/doh/downloads/pdf/public/notice-adoption-hc-art81-50.pdf (requiring restaurants with fifteen or more facilities to post nutritional information). See generally KATE ARMSTRONG, PUB. HEALTH LAW CTR., MENU LABELING LEGISLATION: OPTIONS FOR REQUIRING THE DISCLOSURE OF NUTRITIONAL INFORMATION IN RESTAURANTS (2009), available at http://publichealthlawcenter.org/sites/default/files/resources/phlc-policy-menu-labeling.pdf.
75 See, e.g., Terry Baynes, Court: Tobacco Health Labels Constitutional, REUTERS, Mar. 19, 2012, available at http://www.reuters.com/article/2012/03/19/us-tobacco-labels-idUSBRE82I0VX20120319.
76 Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) (to be codified primarily in scattered sections of 42 U.S.C.)
77 Id. § 4205.
78 Id. The FDA issued two proposed regulations that require calorie labeling on menus and menu boards in chain restaurants, retail food establishments, and vending machines with twenty or more locations. See Overview of FDA Proposed Labeling Requirements for Restaurants, Similar Retail Food Establishments and Vending Machines, FDA, http://www.fda.gov/Food/LabelingNutrition/ucm248732.htm (last updated Apr. 6, 2011).
79 See Sweetland, Caren, Note, The Demise of a Workable Commercial Speech Doctrine: Dangers of Extending First Amendment Protection to Commercial Disclosure Requirements, 76 TEX. L. REV. 471 (1997)Google Scholar (arguing that application of First Amendment scrutiny to disclosure requirements is unnecessary and inappropriate).
80 See, e.g., Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104 (2d Cir. 2001).
81 Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 650-51 (1985).
82 See id.; Nat’l Elec. Mfrs. Ass’n, 272 F.3d at 114-15.
83 Nat’l Elec. Mfrs. Ass’n, 272 F.3d at 115.
84 See N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 132-33 (2d Cir. 2009).
85 Id.
86 Id. at 132-34.
87 Id. at 134-35. The Second Circuit found that rational basis applies and that New York City had “plainly demonstrated a reasonable relationship” between its means and goal of reducing obesity. Id.
88 Id. at 133.
89 164 F.3d 650 (D.C. Cir. 1999).
90 Id. at 65.
91 Id. at 651.
92 Id.
93 Id. at 654.
94 Id. at 658-60.
95 Id. at 658-59.
96 Id. at 659. The court did leave open the possibility that if evidence in support of a claim is outweighed by evidence against the claim, the FDA could determine that a disclaimer would not cure a misleading claim and ban the claim altogether. Id. It also left open the possibility that the government could find empirical evidence proving that disclaimers such as the examples it offered would confuse consumers, although the court stated that it was skeptical this could be shown. Id.
97 130 F. Supp. 2d 105 (D.C. Cir. 2001)
98 See id. at 120; see also Whitaker v. Thompson, 248 F. Supp. 2d 1, 16-17 (D.D.C. 2002) (finding that an antioxidant claim was not inherently misleading and directing the FDA to submit alternative disclaimers). The court in Whitaker again rejected the FDA's decision to absolutely prohibit a claim, stating that “any complete ban of a claim would be approved only under narrow circumstances, i.e., when there was almost no qualitative evidence in support of the claim and where the government provided empirical evidence proving that the public would still be deceived even if the claim was qualified by a disclaimer.” Id. at 10-11.
99 Pearson II, 130 F. Supp. 2d at 114-20.
100 See Fleminger, Inc. v. U.S. Dep't of Health & Human Servs., No. 3:10cv855 (VLB), 2012 WL 601779 (D. Conn. Feb. 23, 2012). The District Court for the District of Connecticut found that the FDA has a substantial interest in preventing consumer confusion and protecting public health, butit held that the part of the disclaimer stating that “the FDA does not agree that green tea may reduce that risk” negated the entire preceding claim that a relationship between green tea and a reduced risk of cancer existed, and thus burdened more speech than necessary and did not directly advance the government's permissible interests. Id. at *25. In the same decision, the court upheld another part of the disclaimer, stating that there was “very little scientific evidence” supporting the manufacturer's claim as a reasonable fit to achieve the government's ends. Id. at *24.
101 See generally Stephanie Strom, U.S. Judge Strikes Down F.D.A. Cigarette Labels, N.Y. TIMES, Feb. 29, 2012, http://www.nytimes.com/2012/03/01/business/us-judge-rejects-gruesome-cigarette-labels.html (discussing a U.S. District Court's ruling that requiring tobacco companies to display graphic warning labels on cigarette packages violated those companies’ First Amendment free-speech rights).
102 Pub. L. No. 111-31, 123 Stat. 1776 (2009) (to be codified as amended at 21 U.S.C. §§ 301-399).
103 See Baynes, supra note 75.
104 Id.
105 Id.
106 Compare Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115 (2d Cir. 2011) (applying rational basis scrutiny to calorie disclosure requirements), with IMS Health Inc. v. Sorrell, 630 F.3d 263, 282 (2d Cir. 2010) (striking down the Vermont data mining law under intermediate Central Hudson scrutiny).
107 See, e.g., Nat’l Elec. Mfrs. Ass’n, 272 F.3d at 114-15; N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 131-34 (2d Cir. 2009).
108 See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 501 (1996); Rubin v. Coors, 514 U.S. 476, 478 (1995).
109 Pearson v. Shalala (Pearson I), 164 F.3d 650, 657-58 (D.C. Cir. 1999).
110 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 528 (2001) (“The governmental interest in preventing underage tobacco use is substantial, and even compelling … .”); id. at 557 (“The Attorney General relies in part on evidence gathered by the Food and Drug Administration (FDA) in its attempt to regulate the advertising of cigarettes and smokeless tobacco.”).
111 See Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2664 (2011) (“Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted.”).
112 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 563-64 (1980).
113 Id.
114 See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976).
115 Cent. Hudson Gas & Elec. Corp., 447 U.S. at 564.
116 See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (upholding compulsory vaccination laws).
117 See, e.g., Thompson v. W. States Med. Ctr., 535 U.S. 357, 376-77 (2002); Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 570-71 (2001); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 516 (1996); Rubin v. Coors, 514 U.S. 476, 491 (1995).
118 See, e.g., Driscoll, supra note 17, at 214; Gollin, Andrew S., Improving the Odds of the Central Hudson Balancing Test: Restricting Commercial Speech as a Last Resort, 81 MARQ. L. REV. 873, 879 (1998)Google Scholar; Klasmeier, Coleen & Redish, Martin H., Off-Label Prescription Advertising, the FDA and the First Amendment: A Study in the Values of Commercial Speech Protection, 37 AM. J.L. & MED. 315, 338-40 (2011)CrossRefGoogle ScholarPubMed; Orentlicher, David, The Commercial Speech Doctrine in Health Regulation: The Clash Between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm, 37 AM. J.L. & MED. 299, 313 (2011)CrossRefGoogle Scholar; Mulligan, Lia, Note, You Can't Say That on Television: Constitutional Analysis of a Direct-to-Consumer Pharmaceutical Advertising Ban, 37 AM. J.L. & MED. 444, 452-57 (2011).CrossRefGoogle ScholarPubMed
119 See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004) (“[T]he court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives.”).
120 Fla. Bar v. Went For It, Inc., 515 U.S. 618, 635 (1995) (upholding a Florida Bar rule prohibiting lawyers from using direct mail to solicit personal injury or wrongful death clients within thirty days of an accident).
121 Id. at 632 (citing Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989)).
122 Thompson, 535 U.S. at 371-72.
123 See id.; see also 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507 (1996).
124 44 Liquormart, Inc., 517 U.S. at 507.
125 Id.
126 See Thompson, 535 U.S. at 371-73 (listing possible non-speech-related alternative forms of regulations such as banning the use of commercial-scale manufacturing or testing equipment for compounding drug products, prohibiting pharmacists from compounding more drugs in anticipation of receiving prescriptions, prohibiting pharmacists from offering compounded drug products wholesale, or capping the amount of compounded drugs that a pharmacist may sell during a given period of time).
127 Rubin v. Coors, 514 U.S. 476, 490-91 (1995) (citing alternatives, “such as directly limiting the alcohol content of beers, prohibiting marketing efforts emphasizing high alcohol strength … or limiting the labeling ban only to malt liquors”).
128 IMS Health Inc. v. Sorrell, 631 F. Supp. 2d 434, 454-55 (D. Vt. 2009).
129 IMS Health Inc. v. Sorrell, 630 F.3d 263 (2d Cir. 2010), rev’g 631 F. Supp. 2d 434 (D. Vt. 2009); Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011), aff’g 630 F.3d 263 (2d Cir. 2010).
130 See Brown v. Entm't Merchs. Ass’n, 131 S. Ct. 2729, 2731 (2011).
131 Id.
132 Id. at 2738.
133 See United States v. Playboy Grp., 529 U.S. 803, 804 (2000).
134 Brown, 131 S. Ct. at 2733.
135 Id. at 2741; see also Sorrell, 131 S. Ct. at 2670.
136 Brown, 131 S. Ct. at 2741-42.
137 Id. at 2742.
138 Rubin v. Coors, 514 U.S. 476, 488 (1995) (“The failure to prohibit the disclosure of alcohol content in advertising, which would seem to constitute a more influential weapon in any strength war than labels, makes no rational sense if the Government's true aim is to suppress strength wars.”).
139 See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 504 (1996).
140 Sorrell, 131 S. Ct. at 2670.
141 See id. at 2657 (“[Section] 4631(d) imposes a speaker- and content-based burden on protected expression, and that circumstance is sufficient to justify applying heightened scrutiny.”).
142 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 538 (2001); 44 Liquormart, Inc., 517 U.S. at 528; Rubin, 514 U.S. at 497.
143 City of Boerne v. Flores, 521 U.S. 507, 508 (1997).
144 See Roe v. Wade, 410 U.S. 113, 155 (1973) (“Where certain ‘fundamental rights’ are involved, the Court has held that regulation limiting these rights may be justified only by a ‘compelling state interest’ … .”).
145 See Korematsu v. United States, 323 U.S. 214, 216 (1944) (“[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect … [and] courts must subject them to the most rigid scrutiny.”).
146 See, e.g., Fallon, Richard H. Jr., Strict Judicial Scrutiny, 54 UCLA L. REV. 1267, 1269-81 (2007)Google Scholar (discussing the evolution of varying versions of so-called strict scrutiny tests, including strict scrutiny doctrine in First Amendment free speech cases).
147 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562-63 (1980).
148 See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 500 (1996).
149 See Ward v. Rock Against Racism, 491 U.S. 781, 798-801 (1989).
150 Id. at 789.
151 Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).
152 Id.
153 44 Liquormart, Inc., 517 U.S. 484.
154 Id. at 489-90.
155 Id. at 485 (emphasis added).
156 See Lorillard Tobacco Co. v. Reilly, 533 U.S. 534, 567 (2001) (regarding regulations that only prohibited tobacco advertisements that were within a 1000-foot radius of a public playground, playground area in a public park, elementary or secondary school, or point-of-sale advertisements placed lower than five feet from the floor if located within a 1000-foot radius of a public playground, playground area in a public park, or elementary or secondary school).
157 Id. at 567 (“Massachusetts may wish to target tobacco advertisements and displays that entice children, much like floor-level candy displays in a convenience store, but the blanket height restriction does not constitute a reasonable fit with that goal.”).
158 Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2660 (2011).
159 U.S. CONST. amend. I.
160 United States v. Stevens, 130 S. Ct. 1577, 1579 (2010) (striking down federal law criminalizing visual or auditory depictions of animal cruelty).
161 Boos v. Barry, 485 U.S. 312, 312-13 (1988) (invalidating provision prohibiting display of signs bringing foreign government into disrepute within 500 feet of the embassy and prohibiting persons from congregating within 500 feet of the embassy and not dispersing when ordered to do so); Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 764 (1976) (recognizing that the First Amendment protects commercial speech).
162 Sorrell, 131 S. Ct. at 2673.
163 Id. at 2673-74.
164 Id. at 2674 (“Without such a [free] marketplace [of ideas], the public could not freely choose a government pledged to implement policies that reflect the people's informed will.”).
165 Lochner v. New York, 198 U.S. 45 (1905).
166 Sorrell, 131 S. Ct. at 2675 (citing Justice Rehnquist's dissent in Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 589 (1980)Google Scholar, in which he warned of a possible “return to the bygone era of Lochner v. New York, in which it was common practice for this Court to strike down economic regulations adopted by the State based on the Court's own notions of the most appropriate means for the State to implement its considered policies” (internal citation omitted)).
167 Id. at 2673-74.
168 See Brief for New England Journal of Medicine et al. as Amici Curiae Supporting Petitioners, Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (No. 10-779). The New England Journal of Medicine's amici curiae brief explains that the issue of selling private health information is not fundamentally a commercial speech issue, but that the primary issue should really be one of medical privacy and confidentiality. Id.
169 Id. Justice Breyer's dissenting opinion in Sorrell points out that the federal government seeks to regulate public health and medical privacy in similar ways to Vermont's law, noting “it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Vermont's attempts to ensure a ‘fair balance’ of information is no different from the FDA's similar requirement … . No one has yet suggested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont's law differently?” Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2682-83 (2011) (internal citation omitted).
170 Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113-14 (2001).
171 Id.
172 See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980).
173 See generally Baynes, supra note 75.
174 Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 352(n) (West 2012). See generally Morris, Louis A., Mazis, Michael B. & Brinberg, David, Risk Disclosures in Televised Prescription Drug Advertising to Consumers, 8 J. PUB. POL’Y & MARKETING 64 (1989)CrossRefGoogle Scholar (suggesting that some approaches of risk disclosure could potentially improve consumers’ ability to process drug risks without diminishing the effectiveness of marketing).
175 See N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114 (2d Cir. 2009).
176 Id. at 133.
177 See Cent. Hudson Gas & Elec. Corp., 447 U.S. at 566.
178 See, e.g., Driscoll, supra note 17; Waters, supra note 16.