United States First Circuit

In a challenge to the constitutionality of 22 Me. Rev. Stat. Ann. tit. 22, section 1711-E(2-A), which allows prescribers licensed in Maine to choose not to make their identifying information available for use in marketing prescription drugs to them, district court's grant of plaintiffs' motion for preliminary injunction in prohibiting Maine from enforcing section 1711-E(2-A) on the basis of plaintiffs' First Amendment claims is reversed where: 1) plaintiffs' First Amendment challenges fail for the reasons stated in Ayotte, as the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards; 2) the Maine statute constitutionally protects Maine prescribers' choice to opt in to confidentiality protection to avoid being subjected to unwanted solicitations based on their identifying data; 3) plaintiffs' argument that the statute is void for vagueness is rejected; 4) section 1711-E(2-A) regulates prescription drug information intermediaries' out-of-state use or sale of opted-in Maine prescribers' data, and this interpretation does not raise constitutional concerns under the dormant Commerce Clause; and 5) nor would section 1711-E(2-A)'s regulation of prescription drug information intermediaries' out-of-state use of sale of opted-in Maine prescribers' identifying data raise constitutional concerns as a disproportionate burdens on interstate commerce under Pike.

Appellate Information

• Decided 08/04/2010
• Published 08/04/2010

Judges

• LYNCH

Court

• United States First Circuit

Counsel

• For Appellant:
  
• Thomas A. Knowlton, Thomas C. Goldstein