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Sorrell and the Future of Commercial Speech Regulations

JURIST Guest Columnists Micah Berman of New England Law | Boston, Kathleen Dachille of the University of Maryland School of Law, and Julie Ralston Aoki of William Mitchell College of Law say that the opinion in Sorrell v. IMS Health Inc., while troubling, will have minimal impact on well-drafted public health legislation...

The Supreme Court's decision in Sorrell v. IMS Health Inc. striking down Vermont's Prescription Confidentiality Law has caused a considerable amount of alarm and apprehension among public health advocates. For example, Boston University law professor Kevin Outterson, who filed an amicus brief supporting the constitutionality of the law, recently wrote in the New England Journal of Medicine that Sorrell threatened the viability of existing or future public health regulations by requiring a new, heightened level of First Amendment scrutiny. Outterson wrote that the decision "bodes ill for marketing regulation of food, tobacco, alcohol, and other products with important public health effects." He added that if the Court's reasoning was applied to the case of tobacco, "cigarette manufacturers might have a First Amendment right to broadcast TV advertisements or target young prospective smokers with cartoons."

The tobacco companies surely agree. Shortly after the Sorrell decision, the tobacco companies challenging the Family Smoking Prevention and Tobacco Control Act of 2009 — the law authorizing the FDA to regulate tobacco products and restrict tobacco advertising — filed supplemental briefs before the Sixth Circuit arguing that Sorrell supports their arguments. In particular, they pointed to the opinion's statement that "the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements that contain impressive endorsements or catchy jingles." The tobacco companies brandished the same phrase this past week in legal arguments challenging the FDA's planned graphic warning labels for cigarette packages.

While legislators and regulators must pay heed to both the Sorrell decision and the Supreme Court's decision in another First Amendment case with public health implications, Brown v. Entertainment Merchants Association, public health officials might overreact to Sorrell and refrain from enacting sound public health measures for fear of running afoul of the First Amendment. This would be both unfortunate and unnecessary.

Although the Supreme Court's statement about "popular but disfavored product[s]" was troubling, it was ultimately unnecessary to the opinion and is therefore nonbinding dicta. The Court's majority concluded that the test provided by Central Hudson Gas & Electric Corp. v. Public Service Commission — the same standard that has been used to decide commercial speech cases for nearly 30 years — was sufficient to resolve the case. Largely because Vermont's law barred only certain companies, primarily pharmaceutical companies, from obtaining prescriber-identifiable prescription data for marketing purposes, the Court found that the state had not demonstrated that the statute would significantly further its interests, as required by the Central Hudson test. A broader law that applied to all uses and users of such data — similar to a law recently enacted in Texas — likely would have survived a legal challenge. Thus, Sorrell did not break any new legal ground. Further, at least with respect to privacy-related laws, the scope of the decision is quite limited and can be minimized with good legislative drafting.

As to the broader public health implications of the decision, they may not be as dire as predicted. Nothing in the decision referenced tobacco, alcohol, obesity or other similar public health problems, and these issues are quite distinguishable from the restrictions on name-brand pharmaceutical marketing at issue in Sorrell. The Central Hudson test clearly provides that advertising with respect to illegal activities can be restricted, and tobacco and alcohol use by minors is, of course, illegal. Moreover, the Sorrell decision involved "sophisticated and experienced" consumers — physicians. The Court tends to be more flexible when the restriction at issue is intended to protect the general public, and even more so when the protection of children is at issue.

Sorrell emphasized the need to protect the "free flow of commercial speech" so that consumers could make informed choices on issues important to their health. The Court found such concerns are particularly relevant in the case of pharmaceuticals that have the potential to save lives. Obviously, consumers have a less acute interest in obtaining, and the government has a heightened interest in limiting, information about inherently dangerous products — and again, this is even more apt with respect to marketing to children. Ultimately, Sorrell has no relevance at all to laws requiring disclosures of factual information to promote a legitimate government interest such as the protection of public health, as is the case with the FDA's new cigarette warnings. Laws requiring such disclosures — whether on pharmaceuticals, cigarettes, food or other products — are subjected to a lower level of First Amendment scrutiny that was not at issue in Sorrell.

Sorrell does not portend a significant shift in the way courts will address advertising restrictions relevant to tobacco use or other public health problems. While the Court's decisions in Sorrell and Brown are problematic for their willingness to second-guess both legislative decisions and peer-reviewed public health research, the decisions do not fundamentally change the applicable First Amendment standards. Public health officials and policymakers need not overreact to these decisions and should continue to pursue public health measures based on sound science.

Micah Berman is an Associate Professor of Law at the New England School of Law. He is the Director of the Center for Public Health and Tobacco Policy. Berman was previously a trial attorney with the National Criminal Enforcement Section of the US Department of Justice Antitrust Division and a litigation associate with the law firm of Stinson Morrison Hecker LLP.

Kathleen Dachille is an Associate Professor of Law at the University of Maryland School of Law and the Director of the Legal Resource Center for Tobacco Regulation, Litigation, and Advocacy. Through the Center, Dachille provides technical legal assistance to state and local legislators, organizations and community coalitions working in tobacco control and individuals facing tobacco-related legal problems.

Julie Ralston Aoki is an Adjunct Professor of Public Health Law at William Mitchell College of Law. She is also a staff attorney at the Public Health Law Center and works on children's food marketing issues with the National Policy and Legal Analysis Network to Prevent Childhood Obesity.

Suggested citation: Micah Berman, Kathleen Dachille & Julie Ralston Aoki, Sorrell and the Future of Commercial Speech Regulations, JURIST - Forum, Oct. 4, 2011, http://jurist.org/forum/2011/10/berman-dachille-aoki-sorrell.php.

This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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