No. 08-1202 up eme ef the tatee IMS HEALTH, INC. and VERISPAN, LLC, Petitioners, V. KELLY A. AYOTTE, As Attorney General Of The State Of New Hampshire, Respondent. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The First Circuit BRIEF IN OPPOSITION KELLY A. AYOTTE Attorney General of the State of New Hampshire LAURA E. B. LOMBARDI Assistant Attorney General Counsel of Record RICHARD W. HEAD Associate Attorney General NH DEPARTMENT OF JUSTICE 33 Capitol Street Concord, N.H. 03301-6397 (603) 271-3650 COCKLE LAW BRIEF PRINTING CO. 1800~ 225-6964 OR CALL COLLECT t402) 342-2831
Transcript
No. 08-1202
up eme ef the tatee
IMS HEALTH, INC. and VERISPAN, LLC,
Petitioners,
V.
KELLY A. AYOTTE, As Attorney GeneralOf The State Of New Hampshire,
Respondent.
On Petition For A Writ Of CertiorariTo The United States Court Of Appeals
For The First Circuit
BRIEF IN OPPOSITION
KELLY A. AYOTTEAttorney General of the
State of New Hampshire
LAURA E. B. LOMBARDIAssistant Attorney General
Counsel of RecordRICHARD W. HEADAssociate Attorney GeneralNH DEPARTMENT OF JUSTICE33 Capitol StreetConcord, N.H. 03301-6397(603) 271-3650
Whether the First Circuit correctly held that thePrescription Information Law regulates conduct,not First Amendment protected speech, of dataminers.
Whether the First Circuit, in its alternative hold-ing, correctly applied the Central Hudson test inholding that the Prescription Information Lawpasses constitutional muster.
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TABLE OF CONTENTS
Page
Counterstatement of Questions Presented ...........i
Table of Contents ....................................................ii
Table of Authorities ................................................iv
Statement of the Case ............................................1
Reasons for Denying the Petition ..........................12
I. The First Circuit’s Holding That The Pre-scription Information Law Does Not Impli-cate The First Amendment Rights of DataMiners Does Not Conflict With The Deci-sions Of This Court ......................................15
II. The First Circuit Correctly Ruled In ItsAlternative Holding That The PIL PassesConstitutional Muster .................................22
A. This Case Does Not Provide OccasionFor Thi:s Court to Revisit the Commer-cial Speech Doctrine ..............................22
B. The First Circuit’s Application of Cen-tral Hudson Does Not Conflict Withthe Decisions of This Court or the OtherCourts of Appeals ..................................25
1. The First Circuit’s ruling that costcontainment is a substantial gov-ernmental interest is constitution-ally :~ound ..........................................26
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TABLE OF CONTENTS - Continued
Page
2. The First Circuit’s conclusion thatthe PIL directly advances the State’sinterest in cost containment does notwarrant review by this Court ..........28
3. The First Circuit’s conclusion thatthe PIL satisfies the "reasonable fit"requirement does not warrant re-view by this Court ............................31
III. The Nature Of The Lower Court DecisionMakes This Case A Poor Vehicle For Cer-tiorari ...........................................................34
LAPD v. United Reporting Publishing Corp.,528 U.So 32 (1999) .............................................19, 20
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TABLE OF AUTHORITIES - Continued
Page
Nat’l Cable Television Ass’n, Inc. v. FCC, 555F.3d 996 (D.C. Cir. 2009) .........................................20
New State Ice Co. v. Liebman, 285 U.S. 262(1932) .......................................................................29
Ohralik v. Ohio State Bar Assoc., 436 U.S. 447(1978) .......................................................................18
Posadas de P.R. Associates v. Tourism, Co., 478U.S. 328 (1986) ........................................................33
Reno v. Condon, 528 U.S. 141 (2000) .........................18
Rumsfield v. Forum for Academic and Institu-tional Rights, Inc., 547 U.S. 47, 126 S. Ct.1297 (2006) ..............................................................18
Thompson v. Western States Medical Center,535 U.S. 357 (2002) ..................................... 10, 19, 24
Trans Union LLC v. FTC, 295 F.3d 42 (D.C.Cir. 2002) .................................................................20
Trans Union Corp. v. FTC, 245 F.3d 809, reh’gdenied, 267 F.3d 1138 (D.C. Cir. 2001), cert.denied, 536 U.S. 915 (2002) ..............................20, 21
Turner Broadcast Systems v. FCC, 512 U.S. 622(1994) .......................................................................28
Turner Broadcast Systems v. FCC, 520 U.S. 180(1997) ...................................................................9, 10
Universal City Studios, Inc. v. Corley, 273 F.3d429 (2nd Cir. 2001) ............................................16, 20
U.S. West, Inc. v. FCC, 182 F.3d 1224 (10th Cir.1999) ........................................................................21
TABLE OF .AUTHORITIES - Continued
Page
Virginia Board of Pharmacy v. Virginia Citi-zens Consumer Council, Inc., 425 U.S. 748(1976) ........................................................... 16, 17, 23
Wine & Spirits Retailers, Inc. v. Rhode Island,418 F.3d 36 (1st Cir. 2005) ........................................4
44 Liquormart, Inc. v. Rhode Island, 517 U.S.484 (1996) .................................................................18
UNITED STATES CONSTITUTION
First Amendment .................................................passim
1. The New Hampshire legislature enacted thePrescription Information Law ("PIL’)1 in 2006 as ameasure to control health care costs in New Hamp-shire, to protect the health and safety of New Hamp-shire’s citizens, and to protect the privacy of doctorsand patients who use prescription drugs. Before thePIL came into effect, data mining companies such asPetitioners IMS Health and Verispan were able topurchase information from pharmacies about whatindividual physicians prescribed to their patients.The data mining companies would aggregate theinformation and sell it to pharmaceutical companiesfor use in their marketing activities. Pharmaceuticalcompanies used the information to target doctors foroffice visits by sales representatives (called "detail-ing"). Detailing is generally confined to high-margin,high profit drugs, for which the manufacturer hasa substantial incentive to increase sales. Thus, thework of pharmaceutical sales representatives drivesdrug use toward the most expensive products, andcontributes to the strain on health care budgets forindividuals as well as health care programs, espe-cially Medicaid.
Pharmaceutical manufacturers invest consider-able resources in marketing efforts; for example, in2000, the industry spent around $15.7 billion on
marketing, $4 billion of which was dedicated todirect-to-physician strategies. In fact, the large phar-maceutical companies spend a higher proportion oftheir revenues on promotion, marketing, and admin-istration than the proportion spent on research anddevelopment. Detailing in particular has a significanteffect on physician prescribing behavior, yet physi-cians are often unaware of the substantial impactmanufacturer promotional activities have on theirprescription practices. The purpose of all this contactand communication by detailers is not to provide an
unbiased review of the evidence, but rather to en-hance sales of a given company’s product, whether ornot it is the most appropriate or cost-effective choice.
Because of its powerful effect on physicians’ pre-scribing practices, detailing by pharmaceutical salesrepresentatives has significant economic and clinicalconsequences for the health care system. Physicians’use of targeted prescriptions increases substantiallyafter visits with sales representatives. This has im-portant effects on the cost of medications since detail-ing is generally confined to high-margin, high profitdrugs, for which the manufacturer has a substantialincentive to increase sales. The effect of detailing indriving physicians’ prescribing practices to the new-est, most costly products can also have an importanteffect on patients’ clinical outcomes. Because fullunderstanding of a drug’s side effect profile may notbe complete when the drug is first approved formarketing, detailing encourages the prescription of
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new products that might be riskier to patients thanknown agents on the market.
The New Hampshire legislature sought to curbthis escalating problem by enacting the PIL which,among other things, prohibits the use, transfer,license, or sale of prescription information containingprescriber-identifiable data for certain commercialpurposes. By preventing the use of prescriber specificprescription information in detailing physicians, theAct would cause a shift in the message being providedby pharmaceutical representatives. Conversations be-tween detailers and physicians would be less tailoredby the detailer and his or her primary interest in themarket share of the drug being promoted, and wouldfocus more on the science of the drug. The PIL’srestrictions are very narrowly targeted. The PIL doesnot prevent Petitioners from continuing to gather andanalyze prescriber-identifiable information, nor doesit prevent them from publishing, transferring, andselling this information to whomever they choose solong as the recipient does not use the information formarketing.
2. Petitioners filed an action for declaratory andinjunctive relief in the United States District Courtfor the District of New Hampshire. Petitioners assert-ed that the PIL violates the First Amendment, theCommerce Clause, and is void for vagueness. Nopharmaceutical companies joined the action. After abench trial, the district court issued an order on April30, 2007, ruling that the PIL violates Petitioners’First Amendment right to engage in commercial
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speech, and enjoined its enforcement. Pet. App. 152-199. The Court made no ruling regarding IMS Healthand Verispan’s Commerce Clause claim. Id.
The respondent appealed, and the First CircuitCourt of Appeals reversed. Pet. App. 1-51. The FirstCircuit first addressed the issue of standing and heldthat Petitioners lack standing to assert the FirstAmendment rights of pharmaceutical detailers andphysicians. Pet. App. 13-14. The court explained that"[a] party ordinar_fly has no standing to assert theFirst Amendment rights of third parties." Pet. App.13 (quoting Wine & Spirits Retailers, Inc. v. Rhode
Island, 418 F.3d 36, 49 (lst Cir. 2005)). The FirstCircuit rejected Petitioners’ argument that the excep-tion laid down in Craig v. Boren, 429 U.S. 190, 194-95(1976), applied because there was "no indication inthe record that pharmaceutical companies, detailers,or physicians are somehow incapable of or inhibitedfrom vindicating their own rights." Pet. App. 15.Recognizing this Court’s willingness to relax third-party standing in the First Amendment context, theFirst Circuit noted that "this relaxation evinces noth-ing more than a receptiveness to facial attacks onallegedly overbroad laws," and that otherwise, hin-drance remains a necessary prerequisite. Id. Thecourt stated that it would therefore restrict its analy-sis to "whether the data miners’ activities - the acqui-sition, aggregation, and sale of prescriber-identifiabledata - constitute speech or conduct and whether NewHampshire’s legiti.mate governmental interests are
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sufficient to counterbalance any speech rights in-herent therein." Pet. App. 16.
The First Circuit then turned to "the relativelynarrow question" of whether the PIL’s restrictions ontransfers of prescriber-identifiable information frompharmacies to data miners and data miners to phar-maceutical companies regulate the conduct or speechof data miners. Pet. App. 19, 22. The court recognizedthat while "pure informational data can qualify forFirst Amendment protection," Pet. App. 19, there are"species of speech-related regulations that effectivelylie beyond the reach of the First Amendment," Pet.App. 20. "[W]hy or how these content-based prohibi-tions manage to escape First Amendment scrutiny"the court described as a "doctrinal mystery." Pet. App.21. The First Circuit provided its own explanation asfollows:
In our view, the most natural explanation forthis phenomenon is that this complex of defacto exceptions derives from a felt sensethat the underlying laws are inoffensive tothe core values of the First Amendment -inoffensive because they principally regulateconduct and, to the extent that they regulatespeech at all, that putative speech comprisesitems of nugatory informational value. It isthis unusual combination of features thatdistinguishes these laws and places themoutside the ambit of the First Amendment.
Pet. App. 21-22. The court concluded that the restric-tion the PIL places on the data miners’ activities falls
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outside the First Amendment as "a restriction on theconduct, not the speech, of the data miners," describ-ing the data miners’ activities as "a situation in whichinformation itself has become a commodity." Pet. App.22-23. The First Circuit rejected Petitioners’ assertion
that the PIL limits the free flow of information,noting that the PIL "simply does not prevent anyinformation-generating activities" because Petitioners"may still gather and analyze this information; andmay publish, transfer, and sell this information towhomever they choose so long as that person doesnot use the information for detailing." Pet. App. 23-24 (emphasis in original). The court recognized thatPetitioners’ true complaint was not the free flow ofinformation, but rather their ability to turn a profit, aconcern that the First Amendment does not safeguardagainst. Pet. App. ,~4.
Limiting its aaalysis to the restrictions the PILplaces on data miners’ activities,2 the First Circuitheld that "the challenged portions of the PrescriptionInformation Law fall outside the compass of the FirstAmendment. They thus engender rational basis re-view as a species of economic regulation." Pet. App.26. Because Petitioners conceded that the PIL sur-
vived rational basis review, the First Circuit held thattheir challenge under the Free Speech Clause failed.Id.
2 The court left open the question of whether the PIL re-stricts First Amendment protected speech of detailers or doctors.Pet. App. 24.
3. The First Circuit went on to provide analternative ground for its decision. Pet. App. 26-42.Again restricting its analysis to the activities of dataminers, the court reasoned that even if "the acquisi-tion, manipulation, and sale of prescriber-identifiabledata comes within the compass of the First Amend-ment," such transactions are commercial speech, ifspeech at all. Pet. App. 27. The First Circuit rejectedPetitioners’ narrow definition of commercial speechlimited to activities "propos[ing] a commercial trans-
action," see Bd. of Trs. of State Univ. of N.Y.v. Fox,492 U.S. 469, 473-74 (1989), in favor of the broaderdefinition adopted by this Court in Central HudsonGas & Electric Corp. v. Public Service Commission,447 U.S. 557, 561 (1980) (defining commercial speechas "expression related solely to the economic interestof the speaker and its audience"). Pet. App. 27-28.
The First Circuit then proceeded to apply theCentral Hudson test. Examining whether the govern-ment had advanced a substantial state interest insupport of the PIL, the court observed that the Statehad identified three interests served by the PIL: "[1]maintaining patient and prescriber privacy, [2] pro-tecting citizens’ health from the adverse effects ofskewed prescribing practices, and [3] cost contain-ment." Pet. App. 28. For simplicity’s sake, the courtrestricted its analysis to the third of these interests.Id. Noting that "[f]iscal problems have caused entirecivilizations to crumble," the First Circuit concludedthat "cost containment is most assuredly a substan-tial governmental interest." Pet. App. 28.
Next, the First Circuit examined the second stepof the Central Hudson test: whether the regulationdirectly advances the State’s interest. The court ex-plained that while the State "must demonstrate thatthe harms it recites are real" and that the restrictionsat issue "will in fact alleviate them to a materialdegree," certitude is not required. Pet. App. 29. Thecourt observed that "the state’s evidence falls intothree evidentiary s,~bsets"; (1)"evidence showing thatdetailing increases the cost of prescription drugs"; (2)evidence "showing that prescribers’ histories enhancethe success of detailing"; and (3) "evidence indicatingthat, notwithstanding these escalating costs, detail-ing does not contribute to improved patients’ health."Pet. App. 29-30. Thus, the State reasoned that "strip-ping detailers of the ability to use prescribers’ histo-ries as a marketing tool" will decrease the amount ofmore expensive brand-name drugs dispensed, thusreducing or containing overall costs. Pet. App. 30.
As to the first subset of evidence, the First Cir-cuit found it "unarguable" that detailing increases thecost of prescription drugs, noting "[t]he fact that thepharmaceutical industry spends over $4,000,000,000annually on detailing bears loud witness to its effica-cy." Pet. App. 30-31. The court also found that "[t]esti-mony adduced at trial reinforced these common-senseconclusions." Pet. App. 31. Turning to the second andthird step in the analysis, the First Circuit sum-marized the evidence presented by each side at trialand found that
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[t]he state provided competent evidence thatdetailing increases the prescription of brand-name drugs, that brand-name drugs tend tobe more expensive, that detailers’ possessionof prescribing histories heightens this exor-bitant effect, that many aggressively detaileddrugs provide no benefit vis-a-vis their farcheaper generic counterparts, and that de-tailing had contributed to pharmaceuticalscandals endangering both the public healthand the public coffers.
Pet. App. 34-35. While admitting that the State’s evi-dence was "not overwhelming," Pet. App. 33, the FirstCircuit found that the district court "subjected thestate to a level of scrutiny far more exacting than isrequired for commercial speech," Pet. App. 34. TheFirst Circuit also criticized the district court for"disregard[ing] the constraints under which statesoperate in formulating public policy on cutting-edgeissues," noting that "New Hampshire was the firststate to deny detailers access to prescribing histo-ries." Pet. App. 35-36. Thus, the evidence the districtcourt demanded of the State "simply does not exist."Pet. App. 36. The First Circuit found it appropriate to"allow the state legislature some leeway to experi-ment with different methods of combating a socialand economic problem of growing magnitude." Pet.App. 36-37. The court rejected Petitioners’ attack on
the sufficiency of the legislative record, finding it"fanciful to suggest that the congressional record inTurner [Broadcast Systems v. FCC, 520 U.S. 180, 199(1997)] represents the threshold for deference." Pet.
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App. 37. "Given the contents of the legislative record,"
the First Circuit found that "deference is in order." Id.
Thus, on the second step of the Central Hudson
test, the First Circuit "conclude[d] that the stateadequately demonstrated that the Prescription Infor-mation Law is reasonably calculated to advance itssubstantial interest in reducing overall health carecosts within New Hampshire." Pet. App. 38.
Finally, the First Circuit turned to the thirdCentral Hudson question: "whether the regulation isno more extensive than necessary to serve the state’sinterest in cost containment." Id. Applying the ruleset forth in Thompson v. Western States MedicalCenter, 535 U.S. 357 (2002) - that regulating speechmust be a last resort - the First Circuit considered,and rejected, the three alternative measuressuggested by the district court. Pet. App. 38-41. Thecourt reasoned that (1) a ban on gifts to physicianswould target a harm the legislature did not deemcentral to its aims, and would have the unintendedconsequence of cutting off the flow of free sampleswhich are often dispensed by physicians to indigentpatients; (2) a program of "counter-detailing" by theState was not a t~asible solution given that phar-maceutical companies spend over $4,000,000,000 peryear on detailing; and (3) retooling the State’s Medi-caid program in the manner suggested by the districtcourt was impracticable, incomplete, and would be anattempt to remedy compromised prescribing habits ofphysicians after the fact. Pet. App. 39-40. The FirstCircuit concluded that neither Petitioners nor the
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district court had identified an appropriate alterna-tive, and held that the PIL "is no more restrictivethan necessary to accomplish [its] goals." Pet. App.41.
Having held that the challenged portions of thePIL survive intermediate scrutiny, Pet. App. 41, theFirst Circuit turned to Petitioners’ contention thatthe PIL is void for vagueness, Pet. App. 42-46, andPetitioners’ Commerce Clause challenge, Pet. App.46-50. The First Circuit rejected both claims, holdingthat the PIL "is sufficiently clear to withstand [Peti-tioners’] vagueness challenge," Pet. App. 43, and thatthe PIL is susceptible to a construction that does notviolate the Commerce Clause, Pet. App. 48-50.
In conclusion, the First Circuit reversed the de-cision of the district court and vacated the injunctionagainst enforcement of the PIL. Pet. App. 50-51.
4. Judge Lipez issued a separate opinion con-curring in part and dissenting in part. Pet. App. 51-151. While he agreed with the majority’s conclusionthat Petitioners’ activity "is not speech within thepurview of the First Amendment," he disagreed withthe majority’s refusal to address what he described as"the First Amendment issue at the core of this case,"namely, "whether the Act restricts protected commer-cial speech between detailers and prescribers and, ifso, whether the State can justify that restrictionunder" the Central Hudson test. Pet. App. 51-52 (em-phasis added). After examining the issue of standing,Pet. App. 52-63, Judge Lipez went on to address the
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First Amendment issue avoided by the majority, Pet.App. 86-97. He concluded that because the PIL in-directly targets the; speech of detailers in their salesmessages to prescribers, the regulation "is a limita-tion on commercial speech, and the State consequent-ly must bear the burden of demonstrating that itsatisfies the Central Hudson test." Pet. App. 96.Applying that test, he concluded that the PIL sur-vives intermediate scrutiny. Pet. App. 151. He agreedwith the majority that the PIL is sufficiently clear towithstand Petitioners’ vagueness challenge. Id. Withregard to Petitioners’ Commerce Clause claim, hewould have remanded the case to the district court forit to address the issue in the first instance. Pet. App.142.
5. The First Circuit denied Petitioners’ requestfor rehearing and rehearing en banc, Pet. App. 201,as well as Petitioners’ request to stay mandate pend-ing filing for writ of certiorari. Petitioners then filedan emergency application to the Honorable DavidSouter to stay mandate pending certiorari, which wasdenied.
REASONS FOR DENYING THE PETITION
Contrary to Petitioners’ assertions, the First Cir-cuit decision in this case does not threaten the ’%asiceconomic viability of the Internet" or publicationssuch as the daily stock report of the Wall Street Jour-nal. In ruling that Petitioners’ conduct falls outside
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the protections of the First Amendment, the FirstCircuit considered the specific nature of the infor-mation exchanges regulated by the PIL. The courtfound that transfers of prescriber-identifiable infor-mation "undertaken to increase one party’s bargain-ing power in negotiations" were not the sort ofexchanges valued by the Supreme Court’s FirstAmendment jurisprudence. Pet. App. 26. This maynot hold true for other forms of informational ex-changes occurring through the Internet or traditionalmedia.3 The First Circuit expressly declined to issue amore expansive ruling, explaining: "Were the statecapable of forbidding every use of information regard-less of the specific nature of either the use or theinformation, the state’s power to control the flow ofinformation would be nearly absolute." Pet. App. 18.
Petitioners have failed to identify any groundswarranting a grant of certiorari in this case. Theyfirst assert that the First Circuit’s ruling that theirdata mining activities fall outside the protection ofthe First Amendment warrants review because it is inirreconcilable conflict with this Court’s First Amend-ment precedent and because of the impact such a rulewill have on the free flow of information. The decision
3 With regard to the Wall Street Journal and other suchpublications, there is a vast difference between silencing themedia whose sole purpose is communicating information to thepublic, and prohibiting the dissemination of information fromone private company to another private company for economicgain. Pet. App. 23-24.
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below, however, fully comports with relevant FirstAmendment precedent and is limited to the PIL’s reg-ulation of data mining activities, making it unlikelythat it will have the wide-reaching effects on the freeflow of information suggested by Petitioners.
Next, Petitioners assert that the case implicatesa conflict in the circuits concerning the proper defini-tion of "commercial speech," and would also providethis Court with the opportunity to revisit whethercommercial speech should remain subject to lessenedFirst Amendment protection. This case would providea poor vehicle for any further refinement of theCentral Hudson framework given the First Circuit’s
ruling on standing. This Court has been reluctant toadopt an all-purpose test to distinguish commercialfrom noncommercial speech under the First Amend-ment, and the First Circuit’s narrow holding in thiscase does not implicate the concerns raised by someMembers of this Court regarding the Central Hudsonanalysis. Moreover, the First Circuit’s Central Hud-son analysis appears in the court’s alternative groundfor reversal; thus, if this Court agrees that Peti-tioners’ data mining activities fall outside the protec-
tion of the First Amendment, then there would beno need to reach the issues relating to the definitionof commercial speech and the appropriate level ofjudicial scrutiny for legislation restricting suchspeech. In any event, Petitioners’ challenge to theFirst Circuit’s Central Hudson analysis amounts tonothing more than a request for error correction, andthus does not merit a grant of certiorari.
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Finally, Petitioners assert that the daily impactof the PIL on their activities and the adoption ofsimilar statutes in other states necessitate thisCourt’s prompt review of the statute’s constitu-tionality. Reviewing the statute in the context of thiscase, however, would not resolve all potential FirstAmendment challenges that could arise from this orother similar statutes. Because the First Circuitlimited its analysis to the PIL’s effects on data miningactivities only, the statute’s effect on communicationsbetween detailers and doctors remains subject tofuture challenge. Because no pharmaceutical com-pany is a party to this case, the record below isinsufficient to address the First Amendment issuesdetailers could raise in a future challenge. Consid-ering the First Circuit’s limited holding and the lackof a complete record, this case is a poor vehiclethrough which to address the First Amendment issuesraised by the PIL. A review by this Court of the con-stitutionality of the PIL is better left for another case.
Accordingly, the petition for a writ of certiorarishould be denied.
THE FIRST CIRCUIT’S HOLDING THATTHE PRESCRIPTION INFORMATION LAWDOES NOT IMPLICATE THE FIRST AMEND-MENT RIGHTS OF DATA MINERS DOESNOT CONFLICT WITH THE DECISIONS OFTHIS COURT
The First Circuit’s holding that the PIL regulatesconduct, not speech, was not necessary to its decision
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and not in conflict with this Court’s precedents. Thedecision does not conflict with precedent of this Courtestablishing that purely factual matters of publicinterest may claim First Amendment protection. TheFirst Circuit expressly recognized that "pure informa-tional data can qualify for First Amendment protec-tion." Pet. App. 19 (citing Universal City Studios, Inc.v. Corley, 273 F.3d 429, 446-47 (2nd Cir. 2001), andVirginia Board of Pharmacy v. Virginia Citizens Con-sumer Council, Inc., 425 U.S. 748, 770 (1976)). Thedecision below fully comports with relevant FirstAmendment precedents; Petitioners simply disagreewith how the First Circuit applied those precedents tothe facts of this case. Thus, Petitioners’ challenge tothe First Circuit’s decision that data mining activitiesfall outside the protection of the First Amendment isnothing more than a request for error correction bythis Court. In any event, Petitioners greatly overstatethe import of the court’s first holding. The FirstCircuit went on to fully consider the commercialspeech arguments and held that the law satisfiesCentral Hudson. Indeed, the concurring judge agreedwith the majority regarding the application of CentralHudson.
1. The First Circuit’s holding does not hinge onthe factual nature of the data being regulated; rather,the court found that the statute regulates conduct,not speech, because it does not prevent any information-generating activities. The PIL does not prevent Peti-tioners from gathering and analyzing prescriber-identifiable information, nor does it prevent them
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from publishing, transferring, and selling this infor-mation to whomever they choose so long as therecipient does not use the information for marketing.Thus, the PIL does not prevent Petitioners from com-municating information; rather, the PIL’s restrictionsaffect the value of that information as a commodity inthe marketplace due to the restrictions it places onthe recipient’s use of the information. The PIL’s re-strictions on a third party’s use of information do notabridge these Petitioners’ freedom of speech underthe First Amendment.4
The PIL is distinguishable from advertisingregulations. Unlike advertising regulations, whichrestrict the dissemination of information about com-mercial transactions, the PIL regulates commercialtransactions themselves. It is the communicativenature of advertising that brings such speech withinthe ambit of First Amendment protection. See CentralHudson, 447 U.S. at 563 ("The First Amendment’sconcern for commercial speech is based on the infor-mational function of advertising."). While an adver-tisement constitutes "speech" within the scope of theFirst Amendment because it expresses a message by"propos[ing] a commercial transaction," see Virginia
4 As mentioned earlier, the First Circuit held that the Peti-tioners lacked standing to assert the First Amendment rights ofpharmaceutical detailers and physicians, and thus restricted itsanalysis to whether data miners’ activities constitute speech orconduct. The First Circuit left open the question of whether thePIL restricts First Amendment protected speech of detailers ordoctors. Pet. App. 24.
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Pharmacy, 425 U.S. at 762, the actual transactionwhich follows is not the expression of a message,commercial or otherwise, and therefore does not fallwithin the First Amendment’s protection, see Ohralik
v. Ohio State Bar Assoc., 436 U.S. 447, 455 (1978)(recognizing that "expression[s] concerning purelycommercial transactions ha[ve] come within the am-bit of the [First] Amendment’s protection") (emphasisadded). Regulating commercial transactions them-selves does not implicate the First Amendment. See44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,499 (1996) (recognizing the State’s power to regulatecommercial transactions as a justification to regulatecommercial speech linked to those transactions: "Theentire commercial speech doctrine, after all, repre-sents an accommodation between the right to speakand hear expressions about goods and services andthe right of government to regulate the sales of suchgoods and services.") (Emphasis in original) (citationomitted). The fact that the commodity being reg-ulated in this case is a collection of information doesnot bring the data miners’ activities within the pro-
tections of the First Amendment. See Rumsfield v.Forum for Academic and Institutional Rights, Inc.,547 U.S. 47, 126 S. Ct. 1297, 1308 (2006), quotingGiboney v. Empire Storage & Ice Co., 336 U.S. 490,502 (1949) ("[I]t has never been deemed an abridg-ment of freedom of speech or press to make a courseof conduct illegal merely because the conduct wasin part initiated, evidenced, or carried out by meansof language, either spoken, written, or printed."); seealso Reno v. Condon, 528 U.S. 141, 148 (2000)
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(holding that data is a "thing in interstate com-merce").
The First Circuit’s decision does not conflict withthis Court’s decisions in Thompson, 535 U.S. 357,
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,472 U.S. 749 (1985), and LAPD v. United ReportingPublishing Corp., 528 U.S. 32 (1999), none of whichaddressed the speech/conduct question. In Thompson,an advertising case, this Court did not considerwhether the statute at issue restricted speech pro-tected by the First Amendment because the partiesagreed that the statute prohibited commercial speech.535 U.S. at 366. Similarly, in Dun & Bradstreet, a
defamation action, the issue of what constitutesspeech under the First Amendment did not arise. 472U.S. 749. The issue was not whether the defamatorystatements at issue constituted speech protected bythe First Amendment, but rather whether the state-ments involved matters of public concern whichwould restrict the damages the plaintiff could obtain.Id. at 757-63. Finally, in United Reporting the NinthCircuit did not consider whether a private publishingservice’s provision of arrest records to its customersconstituted speech versus conduct, but rather wheth-er its use of the information constituted commercialspeech versus fully-protected First Amendmentspeech. 146 F.3d 1133, 1136 (9th Cir. 1999). On appealto the Supreme Court, the police department "con-cede[d] that if [the publishing service] independentlyacquires the data, the First Amendment protects itsright to communicate it to others." United Reporting,
2O
528 U.S. at 46. Thus, the speech/conduct question atissue in the instant case was not considered in UnitedReporting.
2. The First Circuit’s ruling that the PIL reg-ulates Petitioners’ conduct, not protected speech, alsodoes not conflict with the rulings of other circuits.Although the Second Circuit held in Universal CityStudios, Inc. v. Corley, 273 F.3d 429, that "computercode, and computer programs constructed from codecan merit First Amendment protection," id. at 449(emphasis added), the Court recognized that comput-er programs do not always communicate speechprotected by the :First Amendment, id. at 448-49(discussing Commodity Futures Trading Commissionv. Vartuli, 228 F.3d 94, 109-12 (2nd Cir. 2000)). InVartuli, the Second Circuit considered the manner inwhich a computer program was used, and deniedFirst Amendment protection to the program in thatcase even though il; was expressed in words. Vartuli,228 F.3d at 111.
Petitioners als~ suggest that the First Circuit’sdecision conflicts with rulings of the D.C. Circuit.However, none of the cases Petitioners cite, Nat’lCable Television Ass’n, Inc. v. FCC, 555 F.3d 996 (D.C.Cir. 2009), Trans Union LLC v. FTC, 295 F.3d 42(D.C. Cir. 2002), and Trans Union Corp. v. FTC, 245F.3d 809, reh’g denied, 267 F.3d 1138 (D.C. Cir. 2001),cert. denied, 536 U.S. 915 (2002), address the speech]conduct question. I~ Nat’l Cable, all parties proceededon the basis that there was a regulation of commer-cial speech. 555 F.3d at 1000. Similarly, in Trans
21
Union, the D.C. Circuit applied First Amendmentscrutiny without considering the threshold questionof whether the sale of target marketing lists con-stitutes protected speech. 245 F.3d at 818. Becausethe speech/conduct question was not raised or ad-dressed in those cases, they do not directly conflictwith the First Circuit’s ruling that the PIL regulatesdata miners’ conduct, not First Amendment protectedspeech.
Although the Tenth Circuit did directly addressthe threshold question for application of the FirstAmendment in both U.S. West, Inc. v. FCC, 182 F.3d1224, 1232-33 (10th Cir. 1999) and Lanphere &Urbaniak v. Colorado, 21 F.3d 1508, 1512-13 (10thCir. 1994), cert. denied, 513 U.S. 1044, those cases aredistinguishable. The companies challenging the reg-ulations at issue in U.S. West and Lanphere directlysought to use the information for their own market-ing; therefore, the effect of the regulations on theirFirst Amendment speech rights are more analogousto the rights of pharmaceutical detailers, not dataminers. The First Circuit here did not considerwhether the PIL restricts First Amendment protectedspeech of pharmaceutical detailers, leaving that ques-tion unanswered.
The First Circuit correctly concluded that therestriction the PIL places on the data miners’ activi-ties falls outside the First Amendment as a restric-tion on the conduct, not the speech, of the dataminers. The court’s holding does not conflict withdecisions of this Court or the rulings of other circuits,
22
and does not warrant review by this Court. Moreover,the holding is not necessary to the decision since thecourt went on to fully consider the commercial speechargument.
II. THE FIRST CIRCUIT CORRECTLY RULEDIN ITS ALTERNATIVE HOLDING THAT THEPIL PASSES CONSTITUTIONAL MUSTER
As an alternative ground for its holding, the FirstCircuit ruled that even if the data miners’ activitiescome within the compass of the First Amendment,such transactions constitute commercial speech, ifspeech at all, and the PIL survives intermediatescrutiny. Petitioners claim this holding warrants re-view on two grounds. First, Petitioners assert itprovides an opportunity for this Court to clarify thedefinition of "commercial speech," and to revisitwhether commercial speech should remain subject tolessened First Amendment protection. Second, Peti-tioners erroneously contend that the First Circuit’sholding that the PIL survives First Amendmentscrutiny was wrong.
A. This Case Does Not Provide OccasionFor This Court to Revisit the Commer-cial Speech Doctrine
This Court has not adopted an all-purpose test todistinguish commercial from noncommercial speechunder the First Amendment. Although the Court firstdefined the category of commercial speech as "speech
23
which does no more than propose a commercialtransaction," Virginia Pharmacy, 425 U.S. at 762, inlater opinions the Court has "also suggested that suchlesser protection was appropriate for a somewhatlarger category of commercial speech -’that is,expression related solely to the economic interests ofthe speaker and its audience.’" City of Cincinnati v.Discovery Network, Inc., 507 U.S. 410, 422 (1993)(quoting Central Hudson, 447 U.S. at 561). The Courthas recognized "the difficulty of drawing bright linesthat will clearly cabin commercial speech in a distinctcategory," Discovery Network, 507 U.S. at 419, notingthat "ambiguities may exist at the margins of thecategory of commercial speech," Edenfield v. Fane,507 U.S. 761, 765 (1993). This Court has beenreluctant, for good reason, to reduce the doctrine toany simple rule or determinate criteria,5 and it shoulddecline to do so now.
[The] Court has in its commercial speech doctrine per-sistently gestured toward the "common sense" distinctionbetween commercial speech and speech at the FirstAmendment’s core. The evaluations of"commonsense" arecomplex, contextual, and ultimately inarticulate; theCourt’s appeal to common sense acknowledges that theachievement of constitutional purposes cannot be reducedto any simple rule or determinate criteria. The judgmentsof common sense ultimately revolve around questions ofsocial meaning; they turn on whether the utterance of aparticular speaker should be understood as an effort toengage public opinion or instead simply sell products.
(Continued on following page)
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Nor does this case provide occasion for this Courtto revisit the applicability of Central Hudson’s inter-mediate scrutiny standard. For almost 30 years, thisCourt has consistently applied the intermediatescrutiny called for in Central Hudson in assessingFirst Amendment challenges to regulations of com-mercial speech. Although several Members of theCourt have expressed concerns about the applicabilityof this standard and whether it should apply inparticular cases, see Thompson, 535 U.S. at 367-68(citing opinions in which Justices expressed doubtsabout the Central Hudson analysis), there is no needfor the Court to break new ground in this case. Inarguing that the PIL should be subjected to greaterscrutiny than is called for by Central Hudson, Peti-tioners focus on the alleged social benefit of detailing.The First Circuit, however, did not consider the PIL’seffect on speech between detailers and physicians,finding that Petitioners lack standing to assert theFirst Amendment ~:ights of pharmaceutical detailersand physicians. The First Circuit’s decision in thiscase, therefore, does not implicate the concerns raisedby Petitioners, and thus it does not provide a usefulvehicle for resolving any such doubts about CentralHudson. Central Hudson provides an adequate basisfor decision in this case.
Robert Post, The Constitutional Status of Commercial Speech 48UCLA L. Rev. 1, 18 (2000) (quotations, citations, and footnotesomitted).
25
B. The First Circuit’s Application of Cen-tral Hudson Does Not Conflict With theDecisions of This Court or the OtherCourts of Appeals
Petitioners erroneously contend that the FirstCircuit’s decision "strays so far from accepted FirstAmendment principles as to merit this Court’s re-view." To the contrary, the First Circuit’s applicationof Central Hudson was straightforward and fullyconsistent with this Court’s commercial speech prec-edents.
Central Hudson provides the following test fordetermining the constitutionality of a commercialspeech restriction: If commercial speech is neithermisleading nor related to unlawful activity, State reg-ulation of that communication survives First Amend-ment scrutiny if (1) the State asserts a substantialinterest to be achieved by the regulation; (2) the re-striction directly advances the State interest involved;and (3) the governmental interest cannot be served bya more limited restriction on commercial speech. Cen-
tral Hudson, 447 U.S. at 564.
Petitioners claim that the First Circuit’s applica-tion of this test departed from relevant precedent inthree ways. First, with regard to the "substantialinterest" prong of the Central Hudson analysis, Peti-tioners assert that the First Circuit’s ruling givesprecedential sanction to a paternalistic agenda.
Second, Petitioners contend that the First Circuitreached its decision on the second prong of the
26
analysis by giving improper deference to the Statelegislature and by failing to defer to the findings ofthe district court. Finally, Petitioners assert that theFirst Circuit erred in ruling that the PIL is no morerestrictive than necessary, arguing it is both under-
and over-inclusive. The First Circuit’s decision, how-ever, is consistent with the decisions of this Court.Regardless, this argument amounts to nothing morethan a request for error correction, and thus does notmerit a grant of certiorari.
1. The First Circuit’s ruling that costcontainment is a substantial govern-mental interest is constitutionallysound
1. Petitioners take portions of the decision be-low out of context in arguing that the First Circuitgives precedential sanction to a paternalistic agenda.Contrary to Petitioners’ suggestions, the First Circuitdid not conclude that the PIL satisfies the "substan-tial interest" requirement of Central Hudson basedon the State’s attempt to "improve the quality ofinteractions between detailers and physicians" by"level[ing] the playing field." These quoted passagesappear in other portions of the First Circuit’s opinion,not the court’s application of Central Hudson. Whilerecognizing that New Hampshire cited three separategovernmental interests to be achieved by the PIL, theFirst Circuit expressly limited its analysis of thefirst prong of Central Hudson to the State’s interest incost containment. Pet. App. 28-29. The "paternalistic
27
goals" Petitioners criticize relate to the State’s assert-ed interest in "protecting citizens’ health from theadverse effects of skewed prescribing practices," aninterest which the First Circuit did not address. SeePet. App. 28.
The State has an interest in health care costsdirectly in its role as Medicaid payor, and in con-trolling the cost of health care to its citizens. TheFirst Circuit’s ruling that cost containment suffices tosatisfy the first prong of the Central Hudson test doesnot warrant review by this Court.
2. Petitioners erroneously assert that the FirstCircuit held they lacked standing to challenge thisasserted governmental interest because Petitionersthemselves do not engage in detailing. Again, Peti-tioners take portions of the First Circuit opinion outof context. The First Circuit held that Petitioners"must assert their own rights and explain how thoserights are infringed by the operation of the Prescrip-tion Information Law." Pet. App. 16. The court wenton to note that "this restriction on jus tertii rightsdoes not prevent consideration of New Hampshire’sinterest in combating detailing." Pet. App. 16-17.Petitioners contort this straightforward ruling, mis-takenly interpreting it as precluding Petitioners fromdisputing the State’s interest in containing costs bylimiting detailing. Nothing in the First Circuit’sopinion supports this interpretation. To the contrary,the opinion describes Petitioners’ evidence regardingthe alleged positive effects of detailing, Pet. App. 30,32-33, demonstrating that the court did in fact
28
consider Petitioners’ argument that the PIL does notadvance a cognizable state interest. The First Cir-cuit’s ruling on standing did not preclude Petitionersfrom disputing the State’s assertion that it has asubstantial interest in containing costs by limitingdetailing, and does not warrant review by this Court.
2. The First Circuit’s conclusion thatthe PIL directly advances the State’sinterest in cost containment doesnot warrant review by this Court
I. The First Circuit’s application of the secondprong of the Central Hudson test was fully consistentwith this Court’s commercial speech precedents.Contrary to Petitioners’ contentions, the First Circuitdid not hold that "New Hampshire need not justifythe PIL through an adequate evidentiary record." Pet.30. The court required the State to "demonstrate thatthe harms it recite~,~ are real and that [the] restrictionwill in fact alleviate them to a material degree." Pet.App. 29 (quoting Edenfield, 507 U.S. at 770-71). Thecourt did not simply defer to legislative judgment, butrather carefully reviewed the evidence presentedbelow and determined for itself that the evidencesufficiently demonstrated that the PIL satisfied thesecond prong of the Central Hudson test.6 Pet. App.29-38.
~ The court correctly rejected Petitioners’ challenge to thelack of empirical research. See Turner Broadcast Sys. v. FCC,
(Continued on following page)
29
This prong of Central Hudson requires a fact-intensive analysis that was given careful attention byboth the majority and the concurring judge, and theyboth reached the same conclusion: the PIL is a nar-row, targeted restriction that accomplishes the State’sinterest. Judge Lipez noted "evidence from multiplesources indicated that the expense of unnecessarybrand-name prescribing has in the past ranged intothe billions of dollars nationally." Pet. App. 123. Heaptly concluded that
It]his substantial evidence of needlessspending, combined with evidence that de-tailing with prescriber-identifiable datacontributes to that outcome, is enough toshow that the [PILl ’targets a concrete, non-speculative harm,’ and that the AttorneyGeneral has sufficiently demonstrated thatthe State’s interest in cost-containment wouldbe furthered ’to a material degree’ by thelimitation on speech it seeks to achievethrough the Prescription Act.
512 U.S. 622, 665 (1994) ("Sound policymaking often requireslegislatures to forecast future events and to anticipate the likelyimpact of these events based on deductions and inferences forwhich complete empirical support may be unavailable."); NewState Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) ("a singlecourageous state may, if its citizens choose, serve as a lab-oratory; and try novel social and economic experiments")(Brandeis, J., dissenting). Judge Lipez in his concurring opinionlikewise found it "unreasonable in these circumstances to expectthe Attorney General to provide extensive quantifiable data thatmight only become available after the statute has been in placefor some time." Pet. App. 121.
3O
Id. (citations omitted). Moreover, "the prohibited usesare narrowly defined," Id. at 77, such that "nomessage or interest of consequence ... is foreclosedby the regulation."
Petitioners’ disagreement on the sufficiency ofthe evidence does not warrant review by this Court.
2. Nor is this case a good vehicle for this Courtto resolve the conflict in the circuits surroundingthe application of Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485, 514 (1984), becausethe ultimate outcome of this case would not be anydifferent had the iFirst Circuit held Bose’s de novoreview standard inapplicable. It was the applicationof law to the facts that guided the court’s conclusionin this case, not a contradictory view of the facts thanthe district court’s. As the First Circuit pointed out,"[t]he raw facts are largely undisputed." Pet. App. 4;see also Pet. App. ~33 (Lipez, concurring and dissent-ing) (drawing heavily on the recitation of facts setout by the district court and noting "[t]hose facts arelargely undisputed; the parties primarily contesttheir legal significance"); compare Pet. App. 153-75(district court’s facts section) to Pet. App. 4-8 (FirstCircuit’s background section). The First Circuit’s re-liance on the district court’s factual findings is appar-ent from its cite to the district court’s fact section assupport for its description of detailing. See Pet. App. 4
n.1. Because the First Circuit found the fact to belargely undisputed, this case provides a poor vehiclefor this Court to address the circuit conflict surround-ing Bose.
31
3. The First Circuit’s conclusion thatthe PIL satisfies the "reasonable fit"requirement does not warrant re-view by this Court
Petitioners erroneously contend that the PILis simultaneously under- and over-inclusive in thespeech it restricts, and thus cannot achieve theState’s goals. This prong of the Central Hudson testdoes not require the government to adopt the leastrestrictive means necessary to serve the State’sinterests, but instead requires only a "reasonable fit"between the government’s purpose and the meanschosen to achieve it. Fox, 492 U.S. at 480. The PILsatisfies this requirement.
1. Petitioners’ claim that the PIL is under-inclusive stems from an argument the State made inresponding to Petitioners’ Commerce Clause claim.The district court did not rule on that claim. Onappeal to the First Circuit, the State argued that theCommerce Clause claim was not properly before thecourt because the district court had not ruled on theissue, and Petitioners had not filed a cross-appeal.
Nevertheless, the First Circuit ruled on the issue,holding that the PIL does not violate the CommerceClause because it can be interpreted "to affect onlydomestic transactions." Pet. App. 49. This interpre-tation of the PIL, however, "may not accomplish verymuch," Pet. App. 50, and leaves the PIL with "negli-gible impact," Pet. App. 143 (Lipez, C.J., concurringand dissenting), because pharmacies transmit the
32
data to data centers outside of New Hampshire beforeselling the data to Petitioners.
The PIL need not be given such a narrow con-struction in order to survive Petitioners’ CommerceClause challenge. Interpreting the PIL as affectingtransactions outside of New Hampshire would notviolate the Commerce Clause so long as the statute isconstrued as applying only to records originating inNew Hampshire, and as regulating only entitiesdoing business in New Hampshire. See IMS Health
Inc. et al. v. Sorrell, 2009 WL 1098474, "17-19 (D. Vt.April 23, 2009). New Hampshire pharmacies shouldnot be permitted to avoid compliance with the PILsimply by routing data through data centers outsideof New Hampshire before selling the data toPetitioners. The PIL should be interpreted as affect-ing transactions outside New Hampshire when theyinvolve prescriptions originating in New Hampshire.7
Interpreting the PIL in such a way allows the statuteto accomplish what the State legislature intended,
7 Judge Lipez aptly noted that he was "not sure that the
Attorney General understood the import of her statement thatthe Act regulates only in-state transactions." Pet. App. 148.Given that the proceedings below focused almost exclusively onthe First Amendment issues, see Pet. App. 149 (Lipez, C.J.)(noting the parties only briefly addressed the Commerce Clauseclaim in their briefs to the First Circuit: "the plaintiffs’ argu-ment on the Commerce Clause spans only two and one-halfpages in their sixty-page brief. The Attorney General’s responseis equally terse."), the State should not be held to aninterpretation that wol~ld "leave the Act with negligible impact."
33
and addresses Petitioners’ concerns that the statuteis under-inclusive.
Nor is the PIL over-inclusive. Petitioners’ argu-ment that the PIL "equally applies when the detailingidentifies a less expensive alternative" fails to takeinto account the realities of pharmaceutical detailing.The district court found that "[d]etailing is generallyused only to market prescription drugs that areentitled to patent protection," Pet. App. 163, and theFirst Circuit noted that detailing "is time-consumingand expensive work, not suited to the marketing oflower-priced bioequivalent generic drugs," Pet. App.6. Petitioners’ argument that the PIL is over-inclusivebecause it inhibits competition between patent-pro-tected brands is also unpersuasive since the PILaffects all brands equally, and therefore does notadvantage any one brand over another.
2. Petitioners place undue emphasis on theFirst Circuit’s citation to Posadas de P.R. Associates v.Tourism, Co., 478 U.S. 328 (1986), in its analysis ofthe third prong of the Central Hudson test. The FirstCircuit cites Posadas only once, in rejecting one ofthe district court’s suggested alternative measures:counter-detailing. Pet. App. 40 (citing Posadas insupport of the statement: "It is not a ground forstriking down a commercial speech regulation thatsome counter-informational campaign, regardless ofthe cost, might restore equilibrium to the market-place of ideas"). The First Circuit did not concludethat it was "up to the legislature" to decide whetherto achieve its interests through counter-detailing;
34
rather, the court found that measure to be infeasible"as a matter of simple economics.’’8 Pet. App. 39. TheFirst Circuit’s cite to Posadas does not "breathe life"into that aspect of the case that has been abrogated,and in any event, the brief reference to the case doesnot warrant review by this Court.
III. THE NATURE OF THE LOWER COURTDECISION MAKES THIS CASE A POORVEHICLE FOR CERTIORARI
Even if the Court were otherwise to determinethat the circumstances of this case raise somecompelling issues, the nature of the First Circuit’sdecision makes this case a poor vehicle for resolvingthose questions. Ficst, the court provided two groundsfor its decision; therefore, should this Court grantcertiorari, it cannot simply address the First Circuit’sspeech-conduct holding, but must also perform aCentral Hudson analysis. Second, the First Circuit’sdormant Commerce Clause ruling creates confusionover the scope of the PIL which complicates the FirstAmendment review. Third, issues of standing com-plicate this case due to the fact that PhRMA neverfiled suit in New Hampshire, yet PhRMA is attempt-ing to bring its perspective into the case by filing an
amicus brief. Fourth, the First Circuit restricted its
8 Given that pharmaceutical companies spend over $4,000,000,000annually on detailing, the First Circuit reasonably concludedthat a program of counter-detailing by the State was not a feas-ible solution.
35
Central Hudson analysis to only one of New Hamp-shire’s three asserted interests served by the PIL:
cost containment. The State identified two other in-terests served by the PIL: maintaining patient andprescriber privacy, and protecting citizens’ healthfrom the adverse effects of skewed prescribing prac-tices. This Court would either have to decide whetherthe regulation directly advances those interests with-out the benefit of the First Circuit’s review, or remandfor another round of proceedings. Finally, review ofthese issues is premature. Both Vermont and Mainehave passed similar statutes which have been chal-lenged on similar grounds. Given that the issues arepending in other cases and there is no direct split,there is no pressing need for a grant of certiorari atthis time.
36
CONCLUSION
The petition for writ of certiorari should be de-nied.
Respectfully submitted,
KELLY A. AYOTTE
Attorney General of theState of New Hampshire
LAURA E. B. LOMBARDI
Assistant Attorney GeneralCounsel of Record
RICHARD W. HEADAssociate Attorney GeneralNH DEPARTMENT OF JUSTICE
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