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The US Supreme Court on Thursday struck down 鈥� as a violation of free speech 鈥� a statute that limited how drug companies could market their medications. The Vermont law blocked the use of prescription drug information in pharmaceutical company marketing campaigns designed to sell new drugs to doctors.

In a 6-to-3 vote, the high court said the law violated the First Amendment rights of drug manufacturers and data mining companies to speak about their products. Similar laws in Maine and New Hampshire are now likely in jeopardy.

State lawmakers in Vermont had justified the measure as a means to hold down health care costs and shield doctors from harassing marketing campaigns. But the high court rejected those justifications, saying the state鈥檚 restrictions on the use of the data specifically for marketing were 鈥渘othing more than a difference of opinion.鈥�

鈥淰ermont may be displeased that [marketers] who use prescriber-identifying information are effective in promoting brand-name drugs. The state can express that view,鈥� Justice Anthony Kennedy said in the majority opinion. 鈥淏ut a state鈥檚 failure to persuade does not allow it to hamstring the opposition.鈥�

Justice Kennedy said Vermont鈥檚 law was a content-based and speaker-based restriction on the availability and use of prescriber-identifying information. Under most cases such targeted censorship violates the First Amendment unless it is shown to be drawn to achieve a substantial governmental interest.

Kennedy said the Vermont law fails that test.

Under the Vermont law, many speakers could obtain and use the prescription drug information, Kennedy said. The only speakers barred from obtaining and using the data were drug companies or anyone seeking to use the information for marketing.

鈥淰ermont鈥檚 statute could be compared to a law prohibiting trade magazines from purchasing or using ink,鈥� Kennedy said.

In a dissent, Justice Stephen Breyer said the Vermont law restricted the use of data that was collected pursuant to government regulation of the prescription drug industry. The pharmaceutical companies want the data to create better sales messages, he said.

鈥淚n my view, this effect on expression is inextricably related to a lawful government effort to regulate a commercial enterprise,鈥� Justice Breyer wrote. 鈥淭he First Amendment does not require courts to apply a special 鈥榟eightened鈥� standard of review when reviewing such an effort.鈥�

He added: 鈥淭he speech-related consequences here are indirect, incidental, and entirely commercial.鈥�

Justices Ruth Bader Ginsburg and Elena Kagan joined Breyer鈥檚 dissent.

The Vermont law allowed physicians to decide for themselves whether their prescription information collected by pharmacies could be sold to data mining operations and to drug companies for marketing purposes. The records document a physician鈥檚 history of prescribing drugs to his or her patients.

The law did not restrict the use of the prescription information by researchers, law enforcement, or insurance companies.

The pharmaceutical industry spends an estimated $8 billion a year using such doctor-specific prescription data to target sales pitches to individual physicians. The practice is called detailing. Information identifying patients is excluded from the data, but the companies are able to study each physician鈥檚 prescribing trends and the type of patient population served by the doctor.

Drug manufacturers use the information to assemble a focused sales campaign to convince each doctor to advise his or her patients to use newer, more expensive drugs rather than less expensive generic medications.

Vermont lawmakers found that, in addition to being more expensive, some of the newer drugs carried a higher risk of side effects than established medications. In addition, state legislators sought to protect the privacy of certain medical records.

The pharmaceutical industry argued that drug companies have a constitutionally-protected right to discuss new drugs with physicians. The Vermont law infringed that right by restricting access to prescription data being used to engage in truthful speech about potentially life-saving medications, argued the industry鈥檚 lawyers.

Similar laws were passed in 2007 in New Hampshire and Maine. Both laws were struck down by federal judges, but both were later upheld by the First US Circuit Court of Appeals in Boston.

In the Vermont case, a federal judge upheld the law as an acceptable regulation of commercial speech. That decision was reversed by a divided three-judge panel of the Second US Circuit Court of Appeals in New York.

The Second Circuit ruled that the Vermont law was an overbroad restriction on the commercial speech of drug companies in violation of the First Amendment. The divided panel said the measure did not directly advance the state鈥檚 interest in protecting the privacy of medical records, controlling health care costs, and promoting public health.

Instead, the court said Vermont lawmakers were attempting to correct what the state viewed as 鈥渁n unbalanced marketplace of ideas that undermines the state鈥檚 interests in promoting public health, protecting prescriber privacy, and reducing health care costs.鈥�

In affirming that decision, the high court said: 鈥淲hile Vermont鈥檚 stated policy goals may be proper, [this law] does not advance them in a permissible way.鈥�

Kennedy added: 鈥淭he state seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers 鈥� that is, by diminishing detailers鈥� ability to influence prescription decisions.鈥�

鈥淭hose who seek to censor or burden free expression often assert that disfavored speech has adverse effects,鈥� he said. 鈥淏ut the fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech.鈥�

In his dissent, Breyer warned that the court鈥檚 decision may be a signal that the court is moving back toward the jurisprudence of the justices who served prior to the New Deal.

鈥淎t best the court opens a Pandora鈥檚 Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,鈥� Breyer wrote. 鈥淎t worst, it reawakens Lochner鈥檚 pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.鈥�

The case is Sorrell v. IMS Health Inc. (10-779).