United States Court of Appeals
                      For the First Circuit


No. 08-1248

  IMS HEALTH INCORPORATED, VERISPAN, LLC, and SOURCE HEALTHCARE
  ANALYTICS, INC., a subsidiary of WOLTERS KLUWER HEALTH, INC.,

                      Plaintiffs, Appellees,

                                v.

   JANET T. MILLS, as Attorney General for the State of Maine,

                      Defendant, Appellant.


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                              Before

                       Lynch, Chief Judge,
                Lipez and Howard, Circuit Judges.


     Thomas A. Knowlton, Assistant Attorney General, with whom
Janet T. Mills, Attorney General of the State of Maine, Paul Stern,
Deputy Attorney General, Nancy Macirowski, Assistant Attorney
General, and Thomas C. Bradley, Assistant Attorney General, were on
brief for appellants.
     Thomas C. Goldstein, with whom Thomas R. Julin, Jamie Z.
Isani, Patricia Acosta, Hunton & Williams LLP, Jack H. Montgomery,
Bernstein, Shur, Sawyer & Nelson, P.A., Mark A. Ash, and Smith
Anderson Blount Dorsett Mitchell & Jernigan LLP, were on brief for
appellees.



                          August 4, 2010
               LYNCH, Chief Judge.              This case involves constitutional

challenges to a Maine statute enacted to reduce health care costs

and protect prescribers' data privacy.                        In Maine and elsewhere,

each    time    a    prescription        from     a    physician      or    other    licensed

prescriber is given to a pharmacy, the pharmacy obtains a number of

facts    that       identify     the    prescriber.           Data    put   together    from

multiple transactions involving the same prescriber reveal certain

patterns and preferences, including her prescribing history, her

choice    of     particular           brand-name      drugs    versus       their    generic

equivalents, and the likelihood she will adopt new brand-name

drugs.

               Plaintiffs challenge the constitutionality of 22 Me. Rev.

Stat.    Ann.       tit.   22,    §    1711-E(2-A),       which       allows      prescribers

licensed       in    Maine     to      choose    not     to    make    this       identifying

information available for use in marketing prescription drugs to

them. Section 1711-E(2-A) does not directly prohibit any marketing

practices.       Rather, it prohibits certain entities from licensing,

using, selling, transferring, or exchanging this information for a

marketing purpose if the prescriber has opted to protect the

confidentiality of her prescribing data.                      Me. Rev. Stat. Ann. tit.

22, § 1711-E(2-A).

               Plaintiffs,       companies        that    collect       vast      amounts   of

identifying data about individual prescribers and aggregate the

data     into       reports      and     databases       for     use       when     marketing


                                                -2-
pharmaceutical products, are covered in the text of the law, as are

others.     See 

               Immediately after section

1711-E(2-A)'s      enactment     in    2008,   and     before      its    enforcement,

plaintiffs sued Maine's attorney general in the federal district

court of Maine under 42 U.S.C. § 1983, claiming that section 1711-

E(2-A)'s restrictions on the licensing, use, sale, transfer, or

exchange of Maine prescribers' identifying data for a marketing

purpose are unconstitutional limitations on protected speech under

the First Amendment; that these restrictions are unconstitutionally

vague and overbroad under the First and Fourteenth Amendments; and

that the law also regulates transactions outside of Maine in

violation of the dormant Commerce Clause.                   On December 21, 2007,

the district court granted plaintiffs a preliminary injunction and

prohibited Maine from enforcing section 1711-E(2-A) on the basis of

plaintiffs' First Amendment claims.             See IMS Health Corp. v. Rowe,

, 183 (D. Me. 2007).1

            This case comes to us in an unusual posture.                     Maine is

not   the   only    state   to    have    restricted         plaintiffs'      use    of

prescriber-identifying         data,    and    this    is    not    the    first    time

plaintiffs have made these constitutional claims.                   On November 18,

2008, after the district court granted plaintiffs a preliminary

injunction in this case, this court upheld a similar, but not


      1
          The district court also enjoined Maine from enforcing
parts of section 1711-E implementing section 1171-E(2-A).   See

.

                                         -3-
identical, New Hampshire statute against plaintiffs' constitutional

challenges, a ruling that binds this panel.              See IMS Health Inc. v.

Ayotte, 

(1st Cir. 2008), cert. denied, 

(2009).       In the meantime, the district court's injunction has

remained   in    effect     during   this    appeal,     and    Maine   has   never

implemented section 1711-E(2-A).

              We reject all of plaintiffs' constitutional challenges to

section 1711-E(2-A).        Plaintiffs' First Amendment challenges fail

for the reasons stated in Ayotte: the statute regulates conduct,

not speech, and even if it regulates commercial speech, that

regulation satisfies constitutional standards.                 They also fail for

reasons not present in Ayotte.         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.           We also reject the argument that the

statute is void for vagueness.

              Plaintiffs'    argument       that   section       1711-E(2-A)    is

unconstitutional under the dormant Commerce Clause if applied to

plaintiffs' out-of-state use or sale of opted-in Maine prescribers'

identifying data also fails.         We interpret the Maine statute using

Maine's principles of statutory construction and hold that section

1711-E(2-A) regulates prescription drug information intermediaries'

out-of-state use or sale of opted-in Maine prescribers' data.                   We

hold   that    this   interpretation        does   not   raise    constitutional


                                       -4-
concerns under the dormant Commerce Clause, which might necessitate

a   narrower           reading    of   the   statute   under     the   doctrine    of

constitutional avoidance.

                 The    Supreme    Court's   current   dormant    Commerce     Clause

jurisprudence does not leave Maine powerless to protect Maine

prescribers who have sought to prevent the use of their identifying

data in transactions that also cause substantial in-state harms,

including          increased       health     care     costs.          The     statute

constitutionally reaches plaintiffs' out-of-state transactions as

a necessary incident of Maine's strong interest in protecting

opted-in Maine prescribers from unwanted solicitations, a policy

that Maine also rationally believes will lower its health care

costs.          Nor, we hold, would section 1711-E(2-A)'s regulation of

prescription drug information intermediaries' out-of-state use or

sale       of    opted-in    Maine     prescribers'    identifying      data    raise

constitutional concerns as a disproportionate burden on interstate

commerce under Pike v. Bruce Church, Inc., 

(1970).

                                  I. Factual Background

                 The relevant facts are undisputed.2

                 Prescriber-identifying data is used for many purposes,

but this case concerns restrictions on only one of those uses:



       2
          These facts rely in part on this court's discussion of
the same industry, and plaintiffs' role in that industry, in our
2008 Ayotte opinion.   The parties have relied heavily on those
facts and the record from Ayotte.

                                             -5-
pharmaceutical      manufacturers'         use    of    the      data   to    send    their

pharmaceutical        sales        representatives          to    personally         market

particular drugs to particular prescribers, a practice known as

"detailing."     Section 1711-E defines "detailing" as "one-to-one

contact with a prescriber or employees or agents of a prescriber

for the purpose of increasing or reinforcing the prescribing of a

certain drug by the prescriber."                 Me. Rev. Stat. Ann. tit. 22,

§ 1711-E(1)(A-2).

            Detailing is a massive and expensive undertaking for

pharmaceutical manufacturers, which spend billions of dollars a

year to have some 90,000 pharmaceutical sales representatives make

weekly or monthly one-on-one visits to prescribers nationwide.

Stephanie     Saul,       Doctors    Object      as    Drug      Makers      Learn   Who's

Prescribing     What,       N.Y.    Times,    May      4,    2006,      at    A1.     Each

pharmaceutical        manufacturer's          detailers           market        particular

pharmaceutical products in particular regions. A single prescriber

is visited by an average of twenty-eight detailers a week; an

average of fourteen detailers a week call on a single specialist.

            Prescriber-identifying data is a valuable tool in a

detailer's arsenal of sales techniques.                     With it, pharmaceutical

manufacturers can pinpoint the prescribing habits of individual

prescribers    in     a    region    and   target      prescribers        who    might   be




                                           -6-
persuaded to switch brands or prescribe more of a detailer's brand

of products.3   See 

, at A1.

           During their one-on-one visits to prescribers, detailers

distribute upwards of $1 million worth of free product samples per

year, along with branded promotional materials and pamphlets about

the different conditions their particular products can be used to

treat.     Detailers use prescriber-identifying data to do these

things more effectively; every sales pitch can be tailored to what

the detailer knows of the prescriber based on her prescribing

history.    The central objective is to get prescribers to adopt the

pharmaceutical product the detailer is marketing and to build brand

loyalty.   This goal is not only explicit; it is how detailers earn

bonuses.   See 

, at A1.

           Some prescribers, in Maine and elsewhere, welcome these

interactions.    Detailers, they say, provide them with studies

relevant to their practices, useful free samples, and targeted data

about how widely certain new drugs have been prescribed by others.

They find that detailers provide helpful comparisons of competing

drugs used to treat the same conditions and information about new


     3
          When Merck marketed Vioxx, for example, it used a wealth
of prescriber-identifying data to create monthly reports on
individual prescribers in each detailer's assigned territory. The
reports showed how many Merck versus non-Merck drugs the prescriber
prescribed and estimated how many of these prescriptions could be
substituted for Merck products. Merck then tracked its detailers'
progress in converting prescribers in their territories to the
Merck brand and gave detailers bonuses based on Merck's sales
volume and market share in the detailer's territory.

                                 -7-
drugs or more effective alternatives to the prescriptions they

currently prescribe.    These prescribers say they are immune to

detailers' influence and see no conflict of interest.

           Significantly, though, other prescribers have strenuously

objected that detailing intrudes into their prescribing decisions.

Detailers, these prescribers insist, should not be able to use

their prescribing histories to target them for unwelcome marketing

calls.    An article by a senior vice president of the American

Medical Association (AMA) and an executive of plaintiff IMS Health

noted that physicians "complain bitterly" about detailers "who wave

data in their faces" and challenge them with their own prescribing

histories when they fail to prescribe more of the product the

detailer has been advertising.    R. A. Musacchio & R. J. Hunkler,

More Than a Game of Keep-Away, Pharmaceutical Executive, May 2006.

The head of California's state medical association has reported

that prescribers have been "outraged that people came into their

office and talked to them about how many times they prescribed a

particular drug."    

, at A1.    Aggregated survey data

confirms that physicians have a predominantly negative view of

detailing.   See P. Manchanda & E. Honka, The Effects and Role of

Direct-to-Physician Marketing in the Pharmaceutical Industry: An

Integrative Review, 5 Yale J. Health Pol'y L. & Ethics 785, 788-91

(2005).




                                 -8-
           Many Maine prescribers have openly objected to detailing.

A survey by the Maine Medical Association in 2006 revealed that a

majority     of   Maine   physicians         did   not     want    pharmaceutical

manufacturers to be able to use their individual prescribing

histories for marketing purposes.            One Maine prescriber explained

that she felt that "it intrudes upon my privacy and my work life

for drug companies to buy my information, without my permission,

for marketing purposes."         She has "ask[ed] to be removed from

mailing lists and telephone call lists" and "would like to have the

similar option of not allowing my professional information to be

sold to drug companies for marketing purposes."

           Detailers' use of prescriber-identifying data, however,

is only the final step in a series of transactions that begin with

the acquisition and aggregation of massive amounts of individual

prescribers' identifying data.          Pharmaceutical manufacturers lack

direct access to prescriber-identifying data. That fact has fueled

an   enormously    profitable,       multilayered     market       for   acquiring,

aggregating,      packaging,   and    selling      these    data    primarily   for

detailing.    Plaintiffs are the middlemen of this market.

           When     filling    prescriptions,            individual      pharmacies

accumulate data about the prescriptions individual prescribers have

made, usually for insurance reimbursement.                  Pharmacies that are

part of national chains normally transfer these data to the chain's

central data warehouse.        Each pharmacy, and even each pharmacy


                                       -9-
chain,    is    only   one   piece   of    a   bigger      picture;     individual

prescribers, or their patients, may make prescriptions at many

different pharmacy locations.

            This is where plaintiffs come in.              Plaintiff companies

are    prescription     drug    information     intermediaries          that     mine

specialized data.       They contract with numerous pharmacies and, to

a lesser degree, insurance companies and other carriers, to buy

their raw data.        Under those contracts, the pharmacy's computer

software collects data it sends to plaintiffs.                     The software

encrypts       patient-identifying    data     so   that     plaintiffs        cannot

identify individual patients by name, but it captures information

directly identifying prescribers by name and address and shows

details about the particular drugs prescribed.

            Plaintiffs receive and aggregate data from these various

sources and then compile reports and databases.                 They assemble a

complete picture of individual prescribers' prescribing histories

by    cross-referencing      prescriber    names    with     publicly    available

databases,      including    the   AMA's   database     of    medical     doctors'

specialties.      See 

, at A1.       Plaintiffs admit that most

of their reports and databases are destined--and designed--for

pharmaceutical manufacturers to instruct detailers where to focus




                                     -10-
their efforts, identify which prescribers to target, and assess

detailers' effectiveness.4

           Plaintiffs    then    license    or   sell   these   specialized

databases and reports to pharmaceutical manufacturers, a lucrative

business that yielded revenues of $1.75 billion for plaintiff IMS

Health alone in 2005.5    

are the building

blocks of the reports pharmaceutical manufacturers generate for

individual detailers, who use them to target prescribers in their

assigned areas.

                             II. The Maine Law

           To date, Maine appears to be one of only three states

that have limited detailers' access to prescribers' identifying

data.    See Me. Rev. Stat. Ann. tit. 22, § 1711-E(2-A); N.H. Rev.

Stat. Ann. § 318:47-f; Vt. Stat. Ann. tit. 18, § 4631(d).          Like its

counterparts in New Hampshire and Vermont, the Maine law, section

1711-E(2-A), does so indirectly: in relevant part, it states that

"a   carrier,     pharmacy      or    prescription      drug    information

intermediary," as defined in the statute, "may not license, use,

sell, transfer or exchange for value, for any marketing purpose,



     4
          Plaintiffs also sell or license other databases and
reports to other clients, including governments, nonprofit
organizations, and research institutions.
     5
          Pharmaceutical manufacturers may also use plaintiffs'
data for other purposes, like to send out alerts about particular
drugs to prescribers who have been prescribing it or for research
and development.

                                     -11-
prescription drug information that identifies a prescriber who has

filed for confidentiality protection."6   Me. Rev. Stat. Ann. tit.

22, § 1711-E(2-A).   Maine's law regulates the different layers of

the market for prescriber-identifying information, but it does not

prohibit detailing, nor does it purport to prohibit speech by

detailers to prescribers.

          Unlike similar laws in New Hampshire and Vermont, the

central feature of the Maine law is to limit detailers' access to

an individual prescriber's identifying data only if the prescriber

has affirmatively opted for this protection.7   See 

   includes   "[a]dvertising,    publicizing,
promoting or selling a prescription drug;" "activities undertaken
for the purpose of influencing the market share of a prescription
drug or the prescribing patterns of a prescriber, a detailing visit
or a personal appearance;" "[a]ctivities undertaken to evaluate or
improve the effectiveness of a professional detailing sales force;"
or "[a] brochure, media advertisement or announcement, poster or
free sample of a prescription drug." 

     "'Marketing' does not include pharmacy reimbursement,
formulary compliance, pharmacy file transfers in response to a
patient request or as a result of the sale or purchase of a
pharmacy, patient care management, utilization review by a health
care provider or agent of a health care provider or the patient's
health plan or an agent of the patient's health plan, and health
care research." 

circuit upheld New Hampshire's statute, which
categorically prohibits certain entities, including plaintiffs,
from licensing, transferring, using, or selling any prescriber-
identifying data for a commercial purpose. N.H. Rev. Stat. Ann.
§ 318:47-f; 

. The Vermont statute instead
prohibits certain entities from selling, licensing, exchanging, or
permitting the use of records containing prescriber-identifying
data when marketing or promoting prescription drugs unless the
prescriber has affirmatively consented to such uses. See Vt. Stat.
Ann. tit. 18, § 4631(d); IMS Health Inc. v. Sorrell, 

434, 443-44 (D. Vt. 2009).

                               -12-
              A "prescriber" is "a person who is licensed, registered

or   otherwise       authorized          in   the    appropriate    jurisdiction    to

prescribe and administer drugs in the course of professional

practice."         Me. Rev. Stat. Ann. tit. 22, § 1711-E(1)(G-1).                     As

other       sections     of    §    1711-E      make    clear,     the   "appropriate

jurisdiction" means prescribers licensed and located in Maine: the

provision is designed to protect only "prescribers in the health

care system of this state."               

       Only these Maine

prescribers can opt in, and even opted-in prescribers' identifying

data can be used for any purpose other than detailing.                      See 

section 1711-E(2-A) to achieve three stated

"compelling state interests: to improve the public health, to limit

annual increases in the cost of health care and to protect the

privacy of . . . prescribers in the health care system of this

State."8         

           The Maine legislature found that

"[p]atients and prescribers have requested that the legislature

provide      a    mechanism        for    protecting     the     confidentiality    of

identifying prescription drug information from use for marketing

purposes."         

          "Across    the   nation,"   the

legislature further found, "data companies purchase for marketing

purposes computerized prescription drug records from pharmacies and

insurers that identify prescribers," and they sell these records


        8
          The Maine law contains a separate provision protecting
patient-identifiable data, which plaintiffs do not challenge. See
Me. Rev. Stat. Ann. tit. 22, § 1711-E(2).

                                              -13-
"to prescription drug manufacturers that use personally identifying

prescriber information to attempt to influence prescribers to

prescribe higher priced drugs," resulting in higher health care

costs.      

           "Restricting the use of prescriber

identifying information," the Maine legislature found, "will act to

decrease         drug     detailing    that    targets    the       prescriber,     thus

increasing decisions to prescribe lower priced drugs and decisions

made on the basis of medical and scientific knowledge and driving

down the cost of health care."                

                 Section 1711-E(2-A) operates as follows.                In its first

step,      Maine        prescribers    who     object    to    being     targeted     by

pharmaceutical            detailers    may     register       for     confidentiality

protection.9        See Me. Rev. Stat. Ann. tit. 22, § 1711-E(4).                  Maine

prescribers         can     opt   in   for     confidentiality         protection     in

application materials with the relevant Maine licensing board. 

Those materials must inform Maine prescribers that

"prescription drug information that identifies the prescriber is

used       for    marketing       purposes     by   carriers,        pharmacies     and

prescription        drug     information       intermediaries"        and   must    give

prescribers the option of protecting the confidentiality of their



       9
          Plaintiffs' fleeting assertion that section 1711-E's
definition of a "prescriber" encompasses any prescriber anywhere is
flatly contradicted by section 1711-E's statement of purpose, which
states that the statutes' goals include "to protect the privacy of
. . . prescribers in the health care system of this State." Me.
Rev. Stat. Ann. tit. 22, § 1711-E(1-B).

                                          -14-
identifying information through one of three methods.10 

E(4)(A)(1).      When     a   prescriber      opts   in,   the    relevant      Maine

licensing board must place the individual's name on a list that is

submitted every month to the Maine Health Data Organization, an

independent state executive agency.11            

E(4)(A)(2).

            When patients of an opted-in Maine prescriber fill their

prescriptions,      the   pharmacy      still    collects     the      prescriber's

identifying data and may transfer it to a central data center.                    The

law does not, by its terms, affect this transaction.

            Section 1711-E(2-A) does regulate transactions between

those pharmacies (or pharmacy data centers) and prescription drug

information intermediaries like plaintiffs.                Section 1711-E(2-A)

prohibits   pharmacies        from   selling,   transferring,          or   licensing

opted-in    Maine   prescribers'       identifying     data      for   a    marketing

purpose, unless the prescriber revokes the protection.                        See 

            Once plaintiffs obtain prescriber-identifying data from

pharmacies,   plaintiffs        generate   certain     databases        and   reports



     10
          Those methods are (1) by signing and submitting an
enclosed form to the Maine Health Data Organization; (2) by
manually or electronically checking a box on the form; or (3) by
linking to the Maine Health Data Organization website and filling
out an electronic form. 

E(4)(A)(1).
     11
          The Maine Health Data Organization maintains a health
information database to benefit Maine citizens and develops data
collection policies. Me. Rev. Stat. Ann. tit. 22, § 8703(1); 

                                       -15-
designed to facilitate detailing.          If plaintiffs include opted-in

Maine prescribers' identifying data in these products, they have

"used" the data for a marketing purpose, in violation of section

1711-E(2-A).     See 

           Section 1711-E(2-A) also

prohibits plaintiffs from selling or licensing (to pharmaceutical

manufacturers) only the portion of these databases and reports

containing opted-in Maine prescribers' identifying data.               See 

manufacturers obtain these detailing-

oriented    databases    and   reports,     they   generate      individualized

reports for detailers, who then use individual prescribers' data to

target     prescribers   in    Maine.     Section    1711-E(2-A)      does   not

explicitly limit detailers' use of prescriber-identifying data, but

the   earlier   stages   of    regulation    are    meant   to    prevent    this

information from getting to detailers for use in marketing.

             A violation of section 1711-E(2-A)'s prohibitions is a

violation of the Maine Unfair Trade Practices Act, 

and, under that act, the Maine Attorney General can enjoin the

practice and levy civil penalties of $10,000 per violation, Me.

Rev. Stat. Ann. tit. 5, § 209.12        The law is not subject to criminal

enforcement.




      12
          Though neither party has addressed who may enforce the
Maine Unfair Trade Practices Act, it is undisputed that the
attorney general can enforce section 1711-E on behalf of
individuals through section 209 of the act.

                                    -16-
              Section 1711-E(2-A) was to go into effect on January 1,

2008,   

      but   because    plaintiffs     obtained   a

preliminary injunction before then, Maine has been prevented from

enforcing it.       See 

.           As of September

2009, notwithstanding the injunction, 259 Maine prescribers have

opted in for confidentiality protection.

                               III. First Amendment

              We reject plaintiffs' First Amendment challenge to the

Maine law.         Plaintiffs' claims fail for the same reasons we

rejected their nearly identical First Amendment challenge to New

Hampshire's similar statute in Ayotte.           Plaintiffs' arguments here

fail for another, independent reason.            Maine has set up an opt-in

scheme for prescribers licensed in Maine.               Even assuming arguendo

that the Maine law restricts protected commercial speech and not

conduct, we hold that it directly advances the substantial purpose

of protecting opted-in prescribers from having their identifying

data used in unwanted solicitations by detailers, and thus Maine's

interests in lowering health care costs.

                                        A.

              In   Ayotte,     this   circuit   held    that    New   Hampshire's

restrictions on plaintiffs' licensing, use, sale, transfer or

exchange   of      all   New   Hampshire     prescribers'      identifying   data

regulate conduct, not speech, and thus the First Amendment does not

protect       plaintiffs'        

.


                                       -17-
Ayotte   alternately    held    that    even    if    the   New    Hampshire      law

regulates speech, plaintiffs are at best engaged in commercial

speech and the law survives intermediate scrutiny under Central

Hudson Gas & Electric Corp. v. Public Service Commission, 

(1980).    

    Ayotte also held that reducing health

care costs is a substantial government interest; the court did not

reach New Hampshire's two other asserted interests, protecting

citizens' health and protecting the confidentiality of patients'

and prescribers' identifying data.             

    The New Hampshire

law directly advances health care cost reduction given record

evidence showing that detailing increases prescription drug costs,

that   detailers'    effectiveness      is    bound   up    with   their    use    of

individual prescribers' histories, and that reducing detailers'

access to prescribers' data would make prescribers less responsive

to detailers' efforts to market costly brand-name drugs.                    

  Finally, Ayotte found that New Hampshire's law is no more

restrictive than necessary to advance the state's interest in

containing    costs,   though   its     prohibitions        extend   to    all    New

Hampshire prescribers' identifying data.              

           Maine's     law,    which     was     modeled     in    part    on     New

Hampshire's, regulates the same kind of conduct for the same three

purposes: reducing health care costs in Maine, protecting Maine

patients' health, and protecting Maine patients' and prescribers'

identifying data from unwanted uses in Maine.               Me. Stat. Rev. Ann.


                                       -18-
tit. 22, § 1711-E(A-1).    Indeed, section 1711-E(2-A) differs from

the New Hampshire law only in ways that weaken plaintiffs' First

Amendment and other challenges.       Unlike New Hampshire's law, the

Maine law only prohibits plaintiffs from licensing, using, selling,

transferring or exchanging data identifying prescribers licensed in

Maine who have opted-in for confidentiality protection.         See 

     Unlike New Hampshire's legislature, the Maine

legislature included specific findings that limiting detailers' use

of Maine prescribers' identifying data would reduce health care

costs, ensure Maine prescribers' decisions were based on unbiased

medical and scientific evidence, and protect Maine prescribers from

unwanted detailing visits.    Compare 

(1-A), with N.H.

Rev. Stat. Ann. § 318:47-f.     Maine also introduced evidence into

the record to show how section 1711-E advances Maine's three

asserted interests.

           Plaintiffs concede that Ayotte forecloses their First

Amendment challenge and that the district court's injunction, which

was granted based on their First Amendment claims before Ayotte was

decided,   cannot   be   affirmed    on    those   grounds.   Plaintiffs

nonetheless reiterate shorthand versions of the same arguments this

court rejected in Ayotte: that their use, sale, and licensing of

prescriber-identifying information is speech, not conduct, and that

it is protected speech warranting strict scrutiny, not merely




                                    -19-
commercial speech.13      Their alternate claim, that the Maine law

cannot survive intermediate scrutiny as commercial         speech because

Maine has not introduced any evidence that the law will actually

reduce health care costs, is contradicted by Ayotte's reasoning,

and the record in this case supports Ayotte's conclusion.           

.    There is no basis for considering these arguments

anew.

           We reject plaintiffs' contention that United States v.

Stevens, 

(2010), undermines Ayotte's holding.

Stevens held that speech in the form of video depictions of animal

fighting is not categorically unprotected by the First Amendment,

see 

contrast, Ayotte's initial holding was that

the New Hampshire law primarily regulated conduct, not 

.   Ayotte did suggest that any speech regulated was of

such minimal value that it likely fell outside of First Amendment

protections.     

      That suggestion, though, was in

service   of   Ayotte's   holding    that   the   New   Hampshire   statute

regulated conduct, not speech, an argument not at issue in Stevens.



     13
          Plaintiffs' overbreadth argument, not addressed by the
district court, consists of the bare assertion that the Maine law
is overbroad because it prohibits the use of prescriber-identifying
data when marketing all prescription drugs, not just those drugs
without any obvious financial or health benefit to patients. That
argument is at best an assertion that section 1711-E(2-A) is not
narrowly tailored enough to serve Maine's interest in reducing
health care costs. We rejected an analogous claim in Ayotte, 

, and the argument has no relevance to our
alternate holding in Part III.B.

                                    -20-
Further, Ayotte's alternate holding was that the New Hampshire law

would be upheld even if it regulated protected speech.    

60.

                                 B.

           We reject plaintiffs' First Amendment challenge to the

Maine law for a further reason particular to the Maine statute and

independent of Ayotte.   Even if the Maine law regulates protected

speech, section 1711-E(2-A) directly serves Maine's substantial

interest in vindicating Maine prescribers' rights to avoid unwanted

targeting by detailers in Maine on the basis of their individual

prescribing histories.

           This purpose is not solely about protecting prescribers'

expectation that their identifying data will remain categorically

private.   See Rowe, 

. at 170-72.   Prescribers' also

have a privacy interest in avoiding unwanted solicitations from

detailers who have used their individual prescribing data to

identify and target them.   Maine's stated interest, in turn, is in

shielding those Maine-licensed prescribers who object to this

invasive use of their identifying information and who have opted in

to a system of protection the state provides.   Me. Rev. Stat. Ann.

tit. 22, § 1711-E(1-A)(B),(1-B),(B).    Like laws implementing "do

not call" lists, Maine advances this interest by allowing its

prescribers to join a list to stop their data from being licensed,

used, sold, transferred or exchanged for this unwelcome purpose.


                               -21-
          If section 1711-E(2-A) regulates protected speech at all,

it regulates commercial speech, which the Supreme Court has defined

to include "expression related solely to the economic interests of

the speaker and its audience."       Central 

.

This circuit and others continue to apply this definition.             See

; see also United States v. Philip Morris USA

Inc., 

, 1143 (D.C. Cir. 2009); BellSouth Telecomms.,

Inc. v. Farris, 

, 504 (6th Cir. 2008); Procter & Gamble

Co. v. Amway Corp., 

, 552 (5th Cir. 2001).

          Plaintiffs' purported regulated "speech" consists of data

contained in databases and reports that plaintiffs have designed to

facilitate detailing.       This is economically motivated content

tailored to a commercial use, namely, to help pharmaceutical

manufacturers   better    market   brand-name   prescription   drugs    to

particular prescribers.     Cf. Bolger v. Youngs Drug Prods. Corp.,

, 66-68 (1983) (suggesting that use for an advertising

purpose and the speaker's economic motivations are relevant indicia

of commercial speech).       Plaintiffs' collections of prescriber-

identifying data, if speech at all, would be commercial speech:

their purpose is to "facilitate the marketing of . . . services to

individual customers."     U.S. W. Inc. v. FCC, 

, 1233

n.4 (10th Cir. 1999).14


     14
          Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 

(1985), held that a consumer credit report made available
by a reporting agency to particular subscribers received less First

                                   -22-
          Under the Central Hudson framework, commercial speech is

protected if it is "neither misleading nor related to unlawful

.         That is not at issue here.       Still,

protected commercial speech can be restricted if the "asserted

governmental interest is substantial," "the regulation directly

advances the governmental interest asserted," and the restriction

"is not more extensive than necessary to serve that interest." 

see also 

.

          Assuming         the    opt-in      statute   regulates    protected

commercial speech, Maine meets the test for restricting that

speech.      Maine   has    a    substantial    interest   in   protecting   its

prescribers from unwanted solicitations by detailers in Maine based

on their prescribing histories. "The unwilling listener's interest

in avoiding unwanted communication," the Supreme Court has held,

"has been repeatedly identified in our cases," and it is "an aspect

of the broader 'right to be let alone' that one of our wisest



Amendment protection because it was "solely in the individual
interest of the speaker and its specific business audience." 

   Though not explicitly labeled commercial speech, the
Supreme Court nonetheless concluded that "many of the same concerns
that argue in favor of reduced constitutional protection in those
areas apply here as well." 

n.8.
     Applying these principles in an analogous context, the D.C.
Circuit held that a blanket prohibition on an intermediary's sale
of targeted marketing lists identifying particular consumers with
desired characteristics was subject to lesser scrutiny. See Trans
Union Corp. v. FTC, 

, 818 (D.C. Cir. 2001).         The
reports and databases plaintiffs prepare to facilitate detailing
are indistinguishable from these cases for First Amendment
purposes. Still, we use the Central Hudson framework.

                                       -23-
Justices characterized as 'the most comprehensive of rights and the

right most valued by civilized men.'"         Hill v. Colorado, 

, 716-17 (2000) (quoting Olmstead v. United States, 

, 478 (1928) (Brandeis, J., dissenting)).

               Maine has a substantial interest in vindicating this

right     by   allowing    Maine-licensed   prescribers   to   avoid   being

subjected to unwelcome advertisements and solicitations.                The

Supreme Court has recognized this interest in the context of "do

not mail" lists.15        See Rowan v. U.S. Post Office Dep't, 

, 736-38 (1970) (holding that a federal "do not mail" list

served "the very basic right to be free from sights, sounds, and

tangible matter we do not want"); see also FTC v. Mainstream Mktg.

Servs., Inc., 

, 854-55 (10th Cir. 2003) (recognizing

the government's "substantial interest" in protecting individual

privacy through the federal "do not call" list).           It undoubtedly

extends to protecting Maine prescribers who do not want their data

used to facilitate unwanted solicitations.         See Trans Union Corp.

v. FTC, 

, 818 (D.C. Cir. 2001) (recognizing the

government's "substantial interest" in "protecting the privacy of




     15
          Though many of these unwanted solicitations invade
individuals' right to be left alone in their homes, a location
accorded special protection, Hill formulated this right as one that
applies more broadly, with special but not exclusive force in the
home. 

.

                                    -24-
consumer credit information" by preventing its use in targeted

marketing lists).16

           Section 1711-E(2-A) advances this interest directly.

Both the record evidence and common sense show that "the harms

[Maine] recites are real" and that the law "will in fact alleviate

them to a material degree."             

(quoting

Edenfield v. Fane, 

, 770-71 (1993)).                Time and again,

the   record    establishes,       Maine     prescribers    have    not     merely

complained about being subjected to detailing; they have identified

detailers'     use   of   their    personal    prescribing      histories    as    a

singularly objectionable practice.            Maine's legislature found that

many prescribers had demanded legislative action to protect their

identifying     data   from   this    unwanted     use.     §   1711-E(1-A)(B).

Section    1711-E(2-A)      does     not,    and   need    not,    directly       or

categorically prohibit detailing to address this harm.                    Rather,

Maine provides exactly the protections that Maine prescribers have

requested and allows prescribers to choose whether to invoke them.

           Maine's opt-in confidentiality mechanism is also a less

restrictive means of vindicating prescribers' interests in not

having their information used in detailing.               See Ayotte, 

          This reasoning also disposes of plaintiffs' assertion
that section 1711-E(2-A) is a prior restraint on their speech
because it allows prescribers to prevent plaintiffs from
transferring or using their data.   That argument rests on the
mistaken assumption that plaintiffs have an absolute right to
obtain prescriber-identifying data and to use it to facilitate
unwelcome detailing practices.

                                      -25-
at 59.    Targeted prohibitions are by definition less restrictive

than a categorical ban.       See United States v. Playboy Entm't.

Group, Inc., 

, 815 (2000); see also Mainstream Mktg.

Servs., Inc. v. FTC, 

, 1242-43 (10th Cir. 2004).         Opt-

in mechanisms like the "do not call" list are narrowly tailored by

nature: they "restrict only calls that are targeted at unwilling

recipients."   Mainstream Mktg. 

; see also

Fraternal Ord. of Police v. Stenehjem, 

, 599 (8th Cir.

2005); Nat'l Fed'n of the Blind v. FTC, 

, 342 (4th Cir.

2005); Bland v. Fessler, 

, 733 (9th Cir. 1996).           Opt-in

mechanisms also avoid concerns about state paternalism in the First

Amendment context.      They regulate speech (if speech at all) only

when private individuals choose not to be subject to certain kinds

of communications, not simply because the state has identified

particular communications as harmful.     

.

           Plaintiffs    cursorily   assert   that   Maine   could    have

regulated detailers' free samples to prescribers, educated doctors,

or implemented formulary controls as alternatives to section 1711-

E(2-A).   Ayotte rejected these alternatives as ineffective ways to

advance a state's interest in health care 

-

60.   These alternatives do virtually nothing to advance Maine's

interest in protecting opted-in Maine prescribers' identifying data




                                  -26-
from use in detailing.17     Our analysis also disposes of plaintiffs'

assertion that section 1711-E violates the Fourteenth Amendment as

an economic constraint unrelated to legitimate state interests.

                              IV. Vagueness

            Plaintiffs    also    argue       that   section    1711-E(2-A)'s

prohibition on the use, transfer, licensing, sale, or exchange of

opted-in prescriber-identifying data "for any marketing purpose" is

unconstitutionally vague.         Plaintiffs' brief claims that they

"simply sell the information" to pharmaceutical manufacturers, and

they have no intent to market or advertise pharmaceutical products

to prescribers themselves.         Plaintiffs assert that the law is

unconstitutionally vague because they cannot know whether "any

marketing   purpose"     refers   to    their    motivation    in   selling   or

licensing   the   information     or    to    pharmaceutical   manufacturers'

ultimate purpose in obtaining the data.

            Even if there were possible ambiguity in section 1711-

E(2-A)'s terms, the law is still not void for vagueness. Statutory

ambiguity is a regular byproduct of legislative drafting, but the


     17
          Plaintiffs also introduced evidence on an AMA initiative
that allows medical doctors to signal that they do not want their
prescribing data used in detailing. But the AMA has no real power
to limit plaintiffs' and other intermediaries' use of this data;
compliance is monitored only through complaints to the AMA, and
enforcement depends on plaintiffs and other intermediaries'
goodwill prevailing over the strong financial incentives to use
this data.    Moreover, the AMA scheme does not cover a host of
prescribers like nurse practitioners or osteopathic physicians, who
might want to protect their prescribing data but are ineligible for
the AMA scheme.

                                       -27-
vagueness doctrine invalidates only statutes whose terms are "so

uncertain that persons of average intelligence would have no choice

but to guess at [their] meaning and modes of application."               United

States   v.    Nieves-Castaño,   

,   603   (1st   Cir.   2007)

(quoting United States v. Councilman, 

, 84 (1st Cir.

2005) (en banc)) (internal quotation marks omitted); see also

Ridley v. Mass. Bay Transp. Auth., 

, 93 (1st Cir. 2004).

Whatever ambiguity lurks in the phrase "any marketing purpose," the

law's lengthy definition of the term "marketing," see supra note 6,

surely provides enough of a benchmark to satisfy due process.

              Further, this purported ambiguity does not exist on the

facts: plaintiffs, at minimum, intend for their databases and

reports to facilitate detailing.       Plaintiffs portray themselves as

unwitting middlemen that sell prescriber-identifying information to

their clients with no knowledge or control of its ultimate use.

Plaintiffs' depositions and statements at oral argument reveal

instead that they are well aware that the primary and intended use

of their reports and databases is in detailing.

                       V. Dormant Commerce Clause

              Plaintiffs'   final   constitutional    challenge     is    that

section 1711-E(2-A), "as it is applied to the transactions in which

they engage out of the state and are shown by the record evidence,"




                                    -28-
violates the dormant Commerce Clause.18 Because plaintiffs obtained

an injunction before section 1711-E(2-A) went into effect, however,

the state has not promulgated regulations under this section, there

is no state decisional law, and the law has never been applied.19


     18
          The Commerce Clause, which gives Congress the authority
to "regulate Commerce . . . among the several States," U.S. Const.
art I, § 8, cl. 3, also carries negative or implicit consequences
for states' authority to regulate interstate commerce, referred to
as the "dormant Commerce Clause." There is no claim that Congress
has acted and that Maine's statute must fail on that basis.
     19
          In recent years, the Supreme Court has sharply
distinguished between facial and as-applied challenges, stringently
limiting the availability of the former. See, e.g., Wash. State
Grange v. Wash. State Republican Party, 

, 450-51
(2008); see also G.E. Metzger, Facial Challenges and Federalism,
105 Colum. L. Rev. 873, 878-80 (2005) (questioning whether the
Supreme Court follows this doctrinal position in practice).
     We did not address this distinction in Ayotte: plaintiffs'
dormant Commerce Clause challenge to the New Hampshire statute
there was plainly identified as a facial challenge. See 

.
     Here, plaintiffs say they are not making any facial challenge.
There is some question as to whether plaintiffs' pre-enforcement
challenge can be properly characterized as an as-applied challenge.
Plaintiffs have introduced record evidence showing that their use
or sale of opted-in Maine prescribers' identifying data occurs
outside Maine and that they are "prescription drug information
intermediaries" and thus potentially subject to regulation under
section 1711-E(2-A). But plaintiffs argue that the law applies to
their transactions only based on their statutory construction.
     We accept plaintiffs' characterization of their argument as a
challenge only to section 1711-E(2-A) as it applies to plaintiffs,
as prescription drug information intermediaries, and not as to
pharmacies and other entities. See Milavetz, Gallop & Milavetz,
P.A. v. United States, 

, 1339 & n.7 (2010). We also
assume arguendo that plaintiffs' challenge is not subject to the
restrictions on facial challenges.         But we cannot accept
plaintiffs' assertion that section 1711-E(2-A) applies to their
out-of-state transactions without engaging in our own statutory
analysis. Here, the issue is not whether plaintiffs belong to a
class of entities that section 1711-E(2-A) plainly regulates
extraterritorially; it is how to interpret section 1711-E(2-A)'s

                               -29-
Plaintiffs assert that they are "prescription drug information

intermediaries" as defined in section 1711-E, and Maine does not

dispute this.      Cf. Milavetz, Gallop & Milavetz, P.A. v. United

States, 

, 1339 & n.7 (2010).

           Plaintiffs'      challenge   presents       questions      of   whether

section 1711-E(2-A) would be interpreted under Maine law to apply

to   plaintiffs'    out-of-state     use   or    sale    of    opted-in      Maine

prescribers'    identifying    data,    including      whether     the     rule    of

constitutional avoidance requires the statute to be interpreted not

to apply to plaintiffs' out-of-state transactions.20                  As a matter

of law, we hold that the statute applies to plaintiffs' out-of-

state use or sale of opted-in Maine prescribers' identifying data

and that the statute does so constitutionally.                 We also reject

plaintiffs'    claim   at   oral   argument     that    we   should    leave      the

district court's injunction in place and remand this claim for

further proceedings.

           Plaintiffs interpret section 1711-E(2-A) to apply to

their out-of-state transactions based on their construction of its

text.     They claim that the regulation violates the so-called

"extraterritoriality" branch of the dormant Commerce Clause, which


intended scope.     Cf. 

     20
          We do not decide whether section 1711-E(2-A) applies to
pharmacies'   or   pharmaceutical   manufacturers'    out-of-state
transactions involving opted-in Maine prescribers.    There is no
indication that these entities cannot effectively assert their own
rights insofar as they are affected by section 1711-E(2-A).

                                    -30-
they say prohibits direct regulation of interstate commerce that

occurs wholly outside a state's borders.        In the alternative,

plaintiffs assert, this regulation violates the Pike balancing test

"because it does nothing to advance in-state interests and imposes

a heavy burden on interstate activity."

          We reject plaintiffs' arguments.     We interpret section

1711-E(2-A)'s scope by applying the rules of statutory construction

that the state's highest court would follow.    

; see also Adar v. Smith, 

, 714 (5th Cir. 2010).   We

hold, based on the text and legislative backdrop of section 1711-

E(2-A) and Maine's canons of statutory construction, that section

1711-E(2-A) regulates plaintiffs' out-of-state use or sale of

opted-in Maine prescribers' identifying data.

          We further hold that this interpretation of the statute

does not raise constitutional concerns under the dormant Commerce

Clause.   The Supreme Court's current dormant Commerce Clause

jurisprudence is concerned with preventing economic protectionism

and inconsistent regulation, not with enforcing geographical limits

on states' exercise of their police power that necessarily regulate

commerce. Even under the extraterritoriality branch of the dormant

Commerce Clause, the Supreme Court has not barred states from

regulating any commercial transactions beyond their borders that

involve their own citizens and create in-state harms. Nor does the

Maine law create constitutional concerns under the Pike balancing


                               -31-
test.   Plaintiffs have not shown any disproportionate burden on

interstate commerce, and the law creates substantial in-state

benefits for those Maine prescribers who have affirmatively asked

Maine to protect their identifying data and for Maine in its

efforts to lower health care costs.

               A. Section 1711-E(2-A)'s Text and Setting

          The text of the statute shows section 1711-E(2-A) was

intended to apply to plaintiffs' out-of-state use or sale of opted-

in Maine prescribers' identifying data.         The statutory text shows

that section 1711-E(2-A) was designed to address a significant

problem occurring in Maine, whose solution has some cross-border

implications.      The law is concerned only with "prescribers in the

health care system of [Maine]," Me. Rev. Stat. Ann. tit. 22,

§ 1711-E(1-B), not prescribers anywhere in the United States, and

specifically    those   prescribers    who   have   opted   in   to   Maine's

"mechanism   for    protecting   the   confidentiality      of   identifying

prescription drug information from use for marketing purposes," 

(1-A)(B).       The statute further recognizes that these

marketing uses occur "[a]cross the nation" when "data companies

purchase for marketing purposes computerized prescription drug

records from pharmacies and insurers that identify prescribers."

    The statutory text also identifies specific

harms arising from these transactions--invasions of prescribers'




                                   -32-
privacy, increased health care costs, and harms to public health--

as occurring in Maine.       See § 1711-E(1-B).

          Section 1711-E(2-A)'s context confirms that the Maine

Legislature intended to reach plaintiffs' out-of-state conduct

because of its substantial connections to Maine and because it

causes harms exclusively in Maine.           Section 1711-E(2-A) targets a

series of underlying transactions that cause these harms, which

start and end in Maine, even if all the transactions covered in

order to effectuate the statute's purposes do not occur in Maine.

Maine prescribers' prescriptions are primarily, if not exclusively,

filled at Maine pharmacies.          Data from those Maine pharmacies are

ultimately      transferred     to      prescription      drug     information

intermediaries like plaintiffs through contractual arrangements.

Plaintiffs'     subsequent    use     and    sale   of   Maine    prescribers'

identifying   data   to   generate     detailing-oriented        databases   and

reports may occur outside Maine, but those activities are bound up

with pharmaceutical manufacturers' ultimate use of the information

in detailing that targets Maine prescribers in Maine.

          The law also takes effect only if Maine prescribers

affirmatively    indicate     that    they   want   Maine   to    protect    the

confidentiality of their identifying information.            See 

E(1)(G-1), (2-A), (4).         Every intermediate step is limited to

transactions involving these prescribers' identifying data.                  See

       The law's ultimate effect is to prevent


                                      -33-
detailers with Maine routes from targeting Maine prescribers with

their own prescribing histories.           

E(1-A), (1-B).

              B. Presumption against Extraterritoriality

          Our interpretation of section 1711-E(2-A) also comports

with Maine's canons of statutory construction.              Maine, like other

states,   generally        presumes       its    statutes       do   not    apply

extraterritorially    in    the    absence      of   contrary   indications     of

legislative intent.     See Holbrook v. Libby, 

, 483 (Me.

1915); see also 73 Am. Jur. 2d Statutes § 250 (2010).                         That

presumption    is   overcome      here:   the    Maine   Legislature       plainly

intended section 1711-E(2-A) to regulate plaintiffs' out-of-state

use or sale of opted-in Maine prescribers' identifying data.21

          Maine's presumption against extraterritoriality reflects

inherent limitations on the scope of states' sovereign regulatory

powers.   See Stavis Ipswich Clam Co. v. Green, 

, 712

(Me. 1968).    This presumption is not a per se rule because those

state powers are not mechanically limited to conduct occurring

within a state's physical borders.           As one learned commentator has

noted, "[i]n practice, states exert regulatory control over each

other all the time . . . . [A] state's geographic territory does

not mark the outer limit of its legitimate regulatory concern."


     21
          In Ayotte, this court held that the presumption against
construing New Hampshire's statute to apply extraterritorially had
not been overcome, not least because the New Hampshire Attorney
General insisted that New Hampshire only sought to regulate conduct
within its 

.

                                      -34-
G.E. Metzger, Congress, Article IV, and Interstate Relations, 120

Harv. L. Rev. 1468, 1521-22 (2007).              Indeed, an entire body of

conflict   of    laws   cases   apply   state    laws   to   extraterritorial

conduct.     See K. Florey, State Courts, State Territory, State

Power: Reflections on the Extraterritoriality Principle in Choice

of Law and Legislation, 84 Notre Dame L. Rev. 1057, 1073-74 (2009).

           Maine, like other states, has construed its laws to apply

to   extraterritorial      conduct   with    a   substantial   impact   in   or

connection to Maine's residents or licensees.            See, e.g., State v.

Hayes, 

, 870 (Me. 1992) (upholding the extraterritorial

enforcement of Maine's lobster laws to vessels registered in

Maine); Dissell v. Trans World Airlines, 

, 444-45 (Me.

1986) (applying Maine's worker's compensation statute to require an

out-of-state airline to further compensate a flight attendant

stationed and injured out of state but residing in Maine because of

sufficient      contacts    with     Maine).22      Section     1711-E(2-A)'s

application to plaintiffs is within Maine's sovereign authority.



      22
          Other states have similarly recognized that "a state may
have the power to legislate concerning the rights and obligations
of its citizens with regard to transactions occurring beyond its
boundaries." N. Alaska Salmon Co. v. Pillsbury, 

(Cal.
1916); see also Sexton v. Ryder Truck Rental, Inc., 

,
854 (Mich. 1982); 73 Am. Jur. 2d Statutes § 250 (2010). Numerous
types of state statutes have extraterritorial effect. See, e.g.,
State v. Flores, 

, 710 (Ariz. Ct. App. 2008) (criminal
laws); Boca Petroco, Inc. v. Petroleum Realty II, LLC, 

, 333-34 (Ga. 2009) (lis pendens statutes); Heath Consultants,
Inc. v. Precision Instruments, Inc., 

, 607 (Neb.
1995) (antitrust law).

                                      -35-
   C. Constitutional Avoidance and the Dormant Commerce Clause

            Finally, we reject the argument that section 1711-E(2-

A)'s application to prescription drug information intermediaries'

out-of-state use or sale of opted-in Maine prescribers' identifying

data would raise constitutional concerns under the dormant Commerce

Clause.23    Under      Maine   and    federal     law,    we    must    "avoid   an

unconstitutional     construction       of     a   statute      if   a   reasonable

interpretation     of    the    statute       would    satisfy       constitutional

requirements."    Anderson v. Town of Durham, 

, 951 (Me.

2006) (quoting Bagley v. Raymond Sch. Dep't, 

, 133 (Me.

1999)) (internal quotation marks omitted).                There is no need for

constitutional avoidance here.

            We   begin   with    the   Supreme        Court's    current   dormant

Commerce Clause jurisprudence, which provides no foundation for

plaintiffs' contention that Maine's regulation of their out-of-

state use or sale of opted-in Maine prescribers' data would raise

constitutional concerns.         The dormant Commerce Clause sets two

complementary     boundaries     for    states'       regulatory      powers   over


     23
          The Maine Attorney General has argued that the law
regulates persons or entities over whom Maine can exercise personal
jurisdiction.   That interpretation states a limitation on any
extraterritorial application of a statute: it must comport with the
requirements of the Due Process and Full Faith and Credit Clauses.
Allstate Ins. Co. v. Hague, 

, 308 (1981). Plaintiffs
have not argued that section 1711-E(2-A)'s application to their
out-of-state transactions would violate those provisions. But that
does not by definition alleviate constitutional concerns under the
dormant Commerce Clause, which serves different purposes. Quill
Corp. v. North Dakota, 

, 312-13 (1992).

                                       -36-
commerce.     On one hand, states cannot interfere with Congress's

constitutional authority over interstate commerce by enacting laws

that seriously impede interstate commerce, even when Congress has

not acted.       See Dep't of Revenue v. Davis, 

, 337-38

(2008).24    On the other hand, states "retain authority under their

general police powers to regulate matters of legitimate local

concern, even though interstate commerce may be affected."              Maine

v. Taylor, 

, 138 (1986) (quoting Lewis v. BT Inv.

Managers, Inc., 

, 36 (1980)) (internal quotation marks

omitted).        Further, in fields traditionally subject to state

regulation, federal courts "should be particularly hesitant to

interfere with [states'] efforts under the guise of the Commerce

Clause." United Haulers Ass'n, Inc. v. Oneida-Herkimer Solid Waste

Mgmt. Auth., 

, 344 (2007) (alterations in original).

            As    to   the   first   of   these   boundaries,   "the   dormant

Commerce Clause is driven by concern about 'economic protectionism-

-that is, regulatory measures designed to benefit in-state economic

interests by burdening out-of-state competitors."           

(quoting New Energy Co. of Ind. v. Limbach, 

,


     24
          This limitation on states' powers is grounded in the
historical origins of the Commerce Clause, which gives Congress the
power to "regulate Commerce . . . among the several States." U.S.
Const. Art I, § 8, cl. 3. The Framers saw this as an essential
element of the Constitution to avoid the "economic Balkanization"
that had prevailed under the Articles of Confederation, under which
states had enacted rampant tariffs and other trade barriers at the
price of national economic unity. See 

;
Granholm v. Heald, 

, 472 (2005).

                                      -37-
273) (1988)).         Similar concerns about hidden protectionism and

excessive barriers to interstate trade arise when states enact laws

likely to subject entities engaged in interstate commerce to

incompatible cross-state regulatory regimes, see CTS Corp. v.

Dynamics Corp. of Am., 

, 88-89 (1987); S. Pac. Co. v.

Ariz. ex rel. Sullivan, 

, 767-68 (1945), or laws with

minimal     in-state     benefits    and   a   disproportionate   impact   on

interstate commerce, see 

.

                These concerns are central to the way the Supreme Court

has framed the dormant Commerce Clause in its recent opinions. The

Maine     law    implicates   none    of   them.    Maine's   regulation   of

prescription drug information intermediaries' out-of-state use or

sale of opted-in Maine prescribers' data does not discriminate

against out-of-state entities in favor of in-state competitors, nor

do plaintiffs so argue.              Maine's law does not risk imposing

regulatory obligations inconsistent with those of other states. No

other states have erected competing regulations, much less opposing

regulations requiring the transfer of Maine prescribers' data.25

This is simply not an example of a state engaged in economic

protectionism.       Cf. 

.26



     25
          Though New Hampshire and Vermont's laws differ somewhat
from Maine's, neither purports to regulate any prescriber anywhere.
     26
          Nor, as we discuss below, would this interpretation of
section 1711-E(2-A) result in excessive burdens on interstate
commerce relative to in-state benefits.

                                       -38-
           Maine's interests, on the other hand, are precisely the

kind of traditional state concerns that the Supreme Court has

identified as falling outside the reach of the dormant Commerce

Clause.   See 

; United 

.   States are "vested with the responsibility of protecting

the health, safety, and welfare of [their] citizens." United

.            To serve those interests, states

exercise the kind of local autonomy essential to federalism.               "The

essence of our federal system is that within the realm of authority

left open to them under the Constitution, the States must be

equally free to engage in any activity that their citizens choose

for the common weal."       

(quoting Garcia v.

San   Antonio    Metro.   Transit    Auth.,    

,   546   (1985))

(internal quotation marks omitted).

           Maine has a uniquely strong interest in protecting Maine

prescribers who have invoked Maine's regulatory authority through

the opt-in scheme.        Cf. 

. Maine has done so

because these commercial transactions also harm the public health

and   increase    Maine's   health    care    costs.    In   advancing    these

interests, Maine has regulated in a traditional area of state

concern without undercutting other states' regulatory schemes or

encroaching on their interests.        Maine's choice must be respected.

           The Maine statute falls outside the central concerns of

the Court's dormant Commerce Clause jurisprudence for another


                                     -39-
reason.     Maine has not shifted the costs of regulation to other

states whose voters cannot affect its legislative choices, nor does

the Maine law "hand local businesses a victory they could not

obtain through the political process." United 

.    Maine's political processes produced this statute, and Maine

voters can, if they disagree, reverse this policy.

            Plaintiffs ignore these foundational principles; indeed,

plaintiffs ignore virtually every Supreme Court dormant Commerce

Clause case after 1989.    Instead, plaintiffs say section 1711-E(2-

A)'s application to their conduct would violate an infrequently

applied strand of the dormant Commerce Clause loosely labeled

extraterritoriality.27    Its central premise is that "a statute that

directly controls commerce occurring wholly outside the boundaries

of a State exceeds the inherent limits of the enacting State's

authority and is invalid regardless of whether the statute's

extraterritorial reach was intended by the legislature."    Healy v.

Beer Inst., Inc., 

, 336 (1989) (emphasis added); see


       27
          Extraterritoriality has been the dormant branch of the
dormant Commerce Clause.    Despite a host of subsequent dormant
Commerce Clause cases, see, e.g., Davis, 

; United
Haulers, 

; Am. Trucking Ass'ns, Inc. v. Mich. Pub.
Serv. Comm'n, 

(2005); Granholm, 

, the
Supreme Court last mentioned the doctrine in a paragraph of a 2003
decision to reject its applicability. The Court pointedly referred
to it as "[t]he rule that was applied in Baldwin and Healy," cases
decided in 1935 and 1989. Pharm. Research & Mfrs. of Am. v. Walsh,

, 669 (2003) (citing Healy, 

; Baldwin v.
G.A.F. Seelig, Inc., 

(1935)). We nonetheless assume
this doctrine remains viable. See State Oil Co. v. Khan, 

, 20 (1997). Even so, plaintiffs' challenge fails.

                                 -40-
also Alliance of Auto Mfrs. v. Gwadowsky, 

, 35 (1st Cir.

2005).    Plaintiffs further suggest that this doctrine applies not

to the Maine law as applied to prescription drug information

intermediaries but to their atomized transactions only. Plaintiffs

make no attempt to square these principles with the Court's current

dormant Commerce Clause jurisprudence or to explain how these

principles fit with its central concerns.         In any event, this

doctrine is inapplicable.

           Whatever the present scope of the extraterritoriality

doctrine, it clearly does not require per se invalidation of all

extraterritorial   applications    contained   within   state   statutes

regulating commerce.28 Section 1711-E(2-A) does not regulate wholly

extraterritorial   commercial   transactions.     Its   regulation   of

plaintiffs' use or sale of opted-in Maine prescribers' data affects

only Maine prescribers and regulates transactions that impact

Maine, with incidental effects elsewhere. It is instead one of "an

infinite variety of cases in which regulation of local matters may


     28
          Some circuits have simply framed the doctrine in terms of
concerns with preventing economic protectionism or inconsistent
regulatory regimes, see, e.g., Cloverland-Green Spring Dairies,
Inc. v. Penn. Milk Mktg. Bd., 

, 262-63 (3d Cir. 2006);
Pharm. Research & Mfrs. of Am. v. Concannon, 

, 81-83
(1st Cir. 2001), aff'd sub nom. Pharm. Research & Mfrs. of Am., 

, or have suggested that the Court's cases do not dictate
"the notion that direct and facial regulation of extraterritorial
transactions is absolutely banned," Alliant Energy Corp. v. Bie,

, 547-50 (7th Cir. 2003); see also J. Goldsmith & A.
Sykes, The Internet and the Dormant Commerce Clause, 110 Yale L.J.
785, 789-90 & n.26 (2001).

                                  -41-
also operate as a regulation of commerce," requiring "appraisal and

accommodation of the competing demands of the state and national

interests involved."    S. Pac. 

.29

          The   Supreme     Court     has    applied      the   so-called

extraterritoriality doctrine sparingly, and in ways that only

reinforce the conclusion that Maine can regulate plaintiffs' out-

of-state use and sale of Maine prescribers' identifying data.        The

Court has only struck down two related types of statutes on

extraterritoriality    grounds.     The   first   are   price-affirmation

statutes that force regulated entities to certify that the in-state

price they charge for a good is no higher than the price they


     29
          Limitations on states' regulation of extraterritorial
commerce have been justified because "one State's power to impose
burdens on the interstate market . . . is also constrained by the
need to respect the interests of other States." BMW of N. Am. v.
Gore, 

, 571 (1996) (internal citation omitted); see
also 

.
     That has never meant that states are powerless to regulate all
transactions beyond their borders, including transactions involving
their citizens.   States' interests may justify extraterritorial
regulation in contexts ranging from taxation under the dormant
Commerce Clause, see, e.g., MeadWestvaco Corp. ex rel. Mead Corp.
v. Ill. Dep't of Revenue, 

, 24-25 (2008), to the
enforcement of criminal and tort law, see, e.g., Young v. Masci,

, 259 (1933); Strassheim v. Daily, 

, 285
(1911) (Holmes, J.); see also Bigelow v. Virginia, 

,
834-35 & 834 n.2 (1975) (Rehnquist, J., dissenting).
     The Edgar v. MITE plurality reasoned that "[t]he limits on a
State's power to enact substantive legislation are similar to the
limits on the jurisdiction of state 

(plurality opinion). But the expansion of personal jurisdiction
beyond the rigid geographical rules of Pennoyer v. Neff, 

(1877), to the nexus-oriented approach of International Shoe
Co. v. Washington, 

(1945), only reinforces the fact
that states' jurisdiction--whether legislative or adjudicatory--is
not categorically limited to their territory in any context.

                                  -42-
charge out of state.     See 

; 

; 

.            The second are

statutes that "force an out-of-state merchant to seek regulatory

approval in one State before undertaking a transaction in another."

; see also Edgar v. MITE 

, 642-43 (plurality opinion).             Even these statutes are not

invariably struck down.        See 

(upholding a

statute regulating takeovers of corporations with a strong in-state

nexus by limiting the acquisition of control shares).

          The    Maine   law    is   easily    distinguishable    from    the

invalidated statutes.     Those state statutes--unlike section 1711-

E(2-A)--raised   independent      concerns     about   protectionism   under

established strands of the dormant Commerce Clause.30             Moreover,

unlike the Maine law, none of the invalidated statutes dealt with

harms caused exclusively inside the regulating state. Nor were the

invalidated statutes limited to regulating transactions with a

significant   inherent   connection     to    the   regulating   state,   and

involving its own professional licensees.           Those differences, and


     30
          The challenged price-affirmation laws were also deemed
unconstitutional because they discriminated against out-of-state
entities in favor of in-state competitors, see 

; 

, or because of their protectionist
effects for consumers, 

. Likewise,
only a plurality in Edgar v. MITE would have invalidated on
extraterritoriality grounds the challenged Illinois law, which
required companies to obtain regulatory approval for takeover bids
of corporations with no real relation to Illinois. 

(plurality opinion). The majority only invalidated the law as
an excessive burden on interstate commerce under Pike. 

                                     -43-
not   the   mere     fact   that   those   statutes   directly   regulated

out-of-state transactions, explain why the Supreme Court deemed

those statutes wholly extraterritorial.31

            Plaintiffs' attempt to analogize the Maine law to these

cases fails.       The Supreme Court has previously distinguished and

upheld a state statute that regulated out-of-state commercial

transactions with a clear in-state nexus and impact.         See 

.32       Other circuits have upheld similar laws on this


      31
          Baldwin involved a New York price affirmation statute
that required out-of-state milk buyers to certify that they paid
out-of-state milk producers no more than what New York producers
received.   

.     The Court deemed the law an
impermissible attempt to project New York's pricing regime on other
states because it had no "direct and certain" relationship to New
York's asserted interest in ensuring a supply of sanitary milk, 

and the asserted purpose of protecting local farmers'
economic welfare was impermissibly protectionist, 

     In Edgar v. MITE, the plurality found the Illinois corporate
takeover bid law had a "sweeping extraterritorial effect" because
it would "regulate a tender offer which would not affect a single
Illinois shareholder" and thus reached conduct in which Illinois
had no conceivable 

(plurality opinion).
     Likewise, the price affirmation statutes in Healy and
Brown-Forman were not limited to transactions involving the
regulating state; they made in-state prices that out-of-state
shippers charged for alcohol contingent on the price those shippers
charged elsewhere. See 

; 

. The only in-state interest served by such laws,
the Court suggested, was to illegitimately protect local interests.
See 

; 

.
      32
          In CTS, the Supreme Court rejected an extraterritoriality
challenge to an Indiana statute limiting out-of-state tender
offerors' acquisition of control shares in certain corporations.
The Court reasoned that the law was limited "only to corporations
incorporated in Indiana" with substantial numbers of shareholders
in Indiana, and therefore "every application of the Indiana Act
will affect a substantial number of Indiana residents, whom Indiana
indisputably has an interest in 

.

                                    -44-
basis.      See, e.g., Quik Payday, Inc. v. Stork, 

, 1308-

09 (10th Cir. 2008); S. Union Co. v. Mo. Pub. Serv. Comm'n, 

, 507-08 (8th Cir. 2002); Baltimore Gas & Elec. Co. v.

Heintz, 

, 1421-27 (4th Cir. 1985); cf. Am. Booksellers

Found.      v.    Dean,   

,   103-04   (2d   Cir.   2003).   That

reasoning, not the broad rule plaintiffs try to derive from Healy

and its antecedents, governs here.33            Under these circumstances, we

hold that section 1711-E(2-A)'s regulation of plaintiffs' conduct

does        not      raise      constitutional        concerns      under   the

extraterritoriality branch of the dormant Commerce Clause.

                 Finally, we reject plaintiffs' alternate contention that

section 1711-E(2-A) would raise constitutional concerns under Pike

if applied to plaintiffs' out-of-state transactions.34                Plaintiffs


       33
          This holding does not put our circuit at odds with a
recent panel opinion of the Seventh Circuit. Midwest Title Loans,
Inc. v. Mills invalidated on extraterritoriality grounds a
provision of an Indiana statute that forbade lenders that solicited
or advertised their lending services in Indiana from making title
loans to Indiana residents, unless they obtained a license from
Indiana (and thereby agreed to be bound by Indiana's restrictions
on the kind of loans permitted). See 

, 662, 669 (7th
Cir. 2010).    Midwest Title reasoned that states should not be
allowed to control interstate commerce to prevent their citizens
from engaging in out-of-state conduct that the regulating state
(but not the citizens themselves) deems harmful. See 

65, 666, 669.
     The Maine law does not raise similar concerns. It regulates
only data from those Maine prescribers who have asked Maine to
protect their data. It does not force other states to apply the
regulating state's paternalistic regulatory choices even when its
residents want to engage in prohibited conduct elsewhere.
       34
          We need not decide whether the Pike balancing test
requires courts to look to the relative benefits and burdens of the

                                        -45-
did not make this argument to the district court; their brief on

appeal cursorily asserts that the law has no in-state benefits and

only out-of-state costs.        That is waiver.           See Mass. Museum of

Contemporary Art Found. v. Büchel, 

, 65 (1st Cir. 2010).

            This claim is also meritless.             "State laws frequently

survive this Pike scrutiny," 

, and section

1711-E(2-A) is no exception. To date, 259 Maine prescribers out of

Maine's     7,500   total    prescribers       have   opted   in    to    Maine's

confidentiality protections.         Section 1711-E(2-A)'s regulation of

plaintiffs' transactions would confer clear in-state benefits by

enabling those prescribers to avoid unwanted targeting in Maine.

            Nothing suggests that the costs to interstate commerce

would be disproportionate in relation to these benefits.                 The loss

of several hundred data points in Maine, out of some 7,500 total

Maine   prescribers    and   1.5    million    prescribers    nationwide,      is

unlikely to seriously impact the marketability of plaintiffs'

products.     Nor have plaintiffs shown that the costs of complying

with    section     1711-E(2-A)'s     protections       meaningfully      burden

interstate    commerce.      There   is   no    obvious    reason   why   cross-


statute as a whole or only to its effect on prescription drug
information intermediaries. Plaintiffs have provided no data about
range of prescription drug information intermediaries subject to
section 1711-E(2-A) or the relative proportion of overall business
transacted in Maine versus outside it. Plaintiffs' Pike challenge
arguably fails on that basis alone; the Pike balancing test is
about burdens on the interstate market as a whole, not about
burdens on particular firms. Even looking only to the law's impact
on plaintiffs' out-of-state transactions, the argument fails.

                                     -46-
    referencing the Maine Health Data Organization's list of opted-in

    Maine prescribers to avoid using or selling this data would prove

    particularly costly or difficult, let alone enough to warrant

    invalidation of a state law.      We also heed the cautionary note the

    Court sounded in Davis: federal courts have less institutional

    competence than states in measuring the costs and benefits of

    particular state regulatory schemes.         

.

                                        VI.

                The judgment of the district court is reversed, and the

    case   is   remanded   with   instructions   to   dismiss   the   case   with

    prejudice.    Costs are awarded to the defendant.




                           -Concurring Opinion Follows-




1


                                       -47-
             LIPEZ, Circuit Judge, concurring in the judgment.                 The

Maine     statute    at   issue   here,   like   the   New   Hampshire   law    we

considered in IMS Health Inc. v. Ayotte, 

(1st Cir.

2008), is a creative effort to meet escalating concerns about the

high cost of prescription drugs and the way they are marketed.

Other states have passed or considered similar legislation.                   See,

e.g., IMS Health Inc. v. Sorrell, 

434, 446 (D. Vt.

2009) (addressing a Vermont statute);35 IMS Health Corp. v. Rowe,

, 180 n.41 (D. Me. 2008) (noting initiatives in

other     states);    Michael     Heesters,   Comment,   An   Assault    on    the

Business of Pharmaceutical Data Mining, 11 U. Pa. J. Bus. L. 789,

791 (2009) (same).        The two statutes that we have reviewed, along

with Vermont's, are aimed at restricting the messages that may be

presented by pharmaceutical detailers to prescribers.                    Because

these provisions have the purpose and effect of regulating the

content of speech, their compatibility with the First Amendment is

a challenging issue that inevitably will be considered by the

Supreme Court.

             The statutes specifically seek to prevent pharmaceutical

detailers from using the prescribing histories of individual health

care professionals in their marketing approach to prescribers.                  In

the view of the States, these individualized sales pitches result


     35
       The decision in Sorrell has been appealed to the Second
Circuit, and oral argument in the case (No. 09-1913) was heard on
October 13, 2009.

                                       -48-
in the over-prescription of high-priced, brand-name drugs, thereby

needlessly increasing public expenditures on prescription drugs

and, at times, harming patient health.36            In an effort to minimize

the First Amendment implications of their content-based goal, Maine

and New Hampshire attempted to cut off access to the prescribing

information at its source.       Hence, the statutes prohibit the sale,

transfer   or    other    dissemination       of    prescriber-identifiable

information among pharmacies and other data-collecting entities for

marketing purposes, but impose no direct limitation on the drug

companies or sales people who do the actual marketing.37 The States

insist that the laws thus regulate conduct, not protected speech.

           As   I   explained        in   Ayotte,    it   begs   reality   to

characterize    these    laws   as   regulations     of   conduct.   Maine's

statute, like New Hampshire's, must be judged for what it is – a


     36
        Each statute operates slightly differently.        The New
Hampshire law imposes an outright prohibition on the sale or use of
prescriber-identifiable data for marketing purposes.     N.H. Rev.
Stat. Ann. §§ 318:47-f, 318:47-g, 318-B:12(IV) (2006).      Maine's
statute imposes such a prohibition only for prescribers who choose
to prevent their prescribing information from being used to market
prescription drugs to them – the so-called "opt-out" approach. Me.
Rev. Stat. Ann. tit. 22, § 1711-E(2-A). Vermont's law has an "opt-
in" feature, prohibiting certain entities from selling or using
prescriber-identifiable    data   for   marketing    or   promoting
prescription drugs unless the prescriber consents. Vt. Stat. Ann.
tit. 18, § 4631.
     37
        The Vermont statute limits the exchange of prescriber-
identifiable information among the same entities as the New
Hampshire and Maine provisions, but it also bars pharmaceutical
manufacturers and marketers from using the information for
marketing or promoting a prescription drug unless the prescriber
consents. See Vt. Stat. Ann. tit. 18, § 4631(d).

                                      -49-
restriction on protected speech subject to the demands of the First

Amendment.     That view has been validated by the Supreme Court's

recent decision in United States v. Stevens, 

(2010). See infra Section II.      However, as construed by the State,

Maine's law also has a substantial ripple effect beyond Maine's

borders that requires review under the dormant Commerce Clause. By

shifting the statute's focus away from the activity considered

harmful – the detailers' interactions with prescribers in Maine –

to the earlier sales of the data, the Legislature in practical

effect targeted transactions that occur primarily outside the

State.

          I agree with the majority that this out-of-state reach is

not fatal.    I write separately, however, to highlight the unusual

relationship    between   the   First   Amendment   and    Commerce     Clause

issues.   Indeed, after examining the law's impact on interstate

commerce, I conclude that the First Amendment is the appropriate

battleground    for   constitutional    analysis    as    these   cases   move

through the courts.

             I. The First Amendment-Commerce Clause Dance

          As a reflection of the analytic difficulties posed by New

Hampshire's    and    Maine's   laws    on   the   use,    sale   and     other

dissemination of prescriber-identifiable data, their provisions are

baffling even to their proponents.             New Hampshire's Attorney

General asserted in Ayotte that the law should be construed to


                                   -50-
govern only in-state transactions, 

, an

interpretation that renders the statute largely irrelevant because

the transfers of data the statute purports to restrict occur almost

entirely out-of-state.        Maine, by contrast, concedes that its

similarly worded provision reaches out-of-state activity.                  At oral

argument, however, when pressed about the statute's reach, the

State's counsel asserted that section 1711-E(2-A) would cover the

pharmaceutical       detailers'   use   in   Maine       of    the     prescriber-

identifiable data – even though the law appears to have been

designed precisely to avoid directly restricting the detailers'

speech to prescribers.

           Counsel noted, for example, that "use in Maine is what

the statute is directed at and that would be proscribed regardless

of whether or not [an out-of-state] transaction before that was

subject   to   the    Act."   Counsel      also   stated       that,    "[i]f   the

assumption is that the transaction between IMS or one of the other

plaintiffs and the drug companies occur[s] totally outside the

State, then what the statute covers is the subsequent use in Maine

by the detailer."       That explanation is at odds with my previous

understanding of the State's construction of the statute, which

explicitly applies to "a carrier, pharmacy or prescription drug

information    intermediary"      ["PDII"]    –    not        to   pharmaceutical

companies and their employees.          That explanation is also at odds

with the district court's reading of the law.                  See Rowe, 532 F.


                                    -51-
Supp. 2d at 169 ("The Law does not make illegal a drug company's

use of opt-out prescriber information for marketing purposes. . .

.   The    Law   forbids   the   PDIIs   from   selling    opt-out   data   for

marketing, but it does not prohibit the pharmaceutical companies

from using the data for marketing.").38

             Although the plaintiffs also state in their brief that

drug companies fall within the statute's definition of a PDII, that

construction departs from plain language and ordinary usage.                 It

may be, as plaintiffs' counsel explained at oral argument, that a

drug manufacturer could be treated as a PDII when it transacts

directly with pharmacies or other sources of prescription data. As

a general matter, however, drug companies are not PDIIs, and

classifying them as such when they are not acting in that capacity

is not a defensible reading of the statute.               Thus, my assumption

throughout is that the statute does not directly regulate drug

manufacturers and their employees, including detailers, unless the

drug manufacturer acts as its own PDII.

             The confusion over how the statutes operate arises from

the States' attempts to achieve indirectly its ultimate objective

– limiting the content of the detailers' messages.             By restricting

the dissemination of prescriber-identifiable data rather than the


      38
        The majority in this case makes the same assumption:
"Section 1711-E(2-A) does not explicitly limit detailers' use of
prescriber-identifying data, but the earlier stages of regulation
are meant to prevent this information from getting to detailers for
use in marketing."

                                     -52-
detailers' messages themselves, the States hoped their laws would

be evaluated as restrictions on conduct rather than speech.                 The

First Amendment consequences of regulating the content of speech do

not disappear, however, simply because the regulation operates

indirectly. See infra. In this instance, the indirection has only

made the constitutional inquiry more complex.

            In   particular,    the    States'     approach   magnified     the

Commerce    Clause   implications      of    the   legislation   because    the

targeted transfers of prescriber-identifiable data for marketing

purposes occur primarily outside of both New Hampshire and Maine.

Evidently    feeling   caught   in    a     constitutional    bind,   the   New

Hampshire Attorney General construed her state's statute to govern

only in-state transactions – effectively stripping the law of any

impact. Although Maine has rejected such a narrow construction, it

is still scrambling to define the reach of its legislation.

            In my view, the States should have confronted directly

the First Amendment challenges of what they sought to do.                 Their

indirect approach has not avoided First Amendment scrutiny, yet

they have generated the Commerce Clause complications that we must

address here.     Those complications might have been avoided with

more straightforward laws addressing the States' concerns about

pharmaceutical detailing.




                                      -53-
                          II. The First Amendment

            I recognize that the majority decision in Ayotte is

binding precedent for the proposition that the statute at issue

here, like the statute in Ayotte, regulates conduct, not speech.

See United States v. Rodríguez, 

, 224 (1st Cir. 2008)

("As a general rule, newly constituted panels in a multi-panel

circuit are bound by prior panel decisions closely on point.").              I

must re-emphasize, however, my strong disagreement with the Ayotte

majority's conclusion that statutes such as those of New Hampshire

and Maine regulate conduct, rather than constitutionally protected

speech.    The purpose of both laws is to restrict           truthful – but,

in   the   States'    view,   undesirable   –   messages     communicated   by

pharmaceutical detailers to prescribing health care professionals.

The State of Maine admits that restricting such speech is precisely

its objective.       Cf. Sorrell, 

at 446 ("Plainly, the

whole   point   of    [Vermont's   statute]     is   to   control   detailers'

commercial message to prescribers.").                The laws achieve this

purpose by regulating the transfer of factual information.                  It

cannot reasonably be argued that these laws, with this ultimate

purpose, do not constitute restrictions on speech. See 

(Lipez, J., concurring and dissenting) (citing

cases); Sorrell, 

at 446 ("The mere fact that

[Vermont's similar provision] regulates protected speech indirectly

does not sweep it from the First Amendment's purview."); Laurence


                                    -54-
H. Tribe, Legal Backgrounder, The Fatal First Amendment Flaw in

Prescription Restraint Statutes (Wash. Leg.             Found., Washington,

D.C.),           Dec.         11,       2009,          available             at

http://www.wlf.org/publishing/publication_detail.asp?id=2125

(noting that the Supreme Court has "recognized that obstructing

access to the informational building blocks of speech is every bit

as pernicious an abuse of governmental power over the free flow of

information and ideas as is restricting the resulting speech

itself").

             In reaching its conclusion in Ayotte that laws such as

these are "outside the ambit of the First 

,   the   majority     equated   transfers   of   prescriber-identifiable

information      with   the   limited   categories     of   speech,   such   as

obscenity and fighting words, that lie "outside the compass of the

Free Speech Clause by virtue of longstanding tradition."               

     In   making    that    comparison,   the   majority   repeatedly

discounted the value of the expression that it acknowledged the New

Hampshire statute might regulate, describing such "putative speech"

as "items of nugatory informational value" and "of scant societal

value."     

             However, in a recent decision considering a challenge to

a law criminalizing depictions of animal cruelty, the Supreme Court

firmly rejected the notion that the First Amendment's guarantee of

free speech "extend[s] only to categories of speech that survive an


                                      -55-
ad hoc balancing of relative social costs and benefits."           

.       The Court explained that the exclusion of

categories of speech from the protection of the First Amendment has

occurred only in "special case[s]."            

(listing the "few limited areas" where "the First Amendment has

permitted restrictions upon the content of speech" (quotation marks

and citation omitted)).       Although observing that other categories

of speech may yet be identified as unprotected based on historical

practice, the Court stated that its prior decisions "cannot be

taken as establishing a freewheeling authority to declare new

categories of speech outside the scope of the First Amendment."

              These prescriber-information cases involve the right to

disseminate truthful information – a classic form of protectible

speech activity, even when done for a fee – and the right to use

that information in crafting a marketing message. Stevens confirms

that   such    speech   may   not   be   excluded   from   First   Amendment

protection "on the basis that [it] is not worth 

, and labeling speech as conduct does not make that exclusion

any more permissible.

              Hence, while Ayotte governs the First Amendment analysis

in this case, I adhere to my view that what is at stake is

protectible speech, not conduct.            The relevant First Amendment

question is thus whether Maine, like New Hampshire, has adequately


                                     -56-
justified the limited restraint on commercial speech imposed by its

statute.      Here, as in Ayotte, I conclude that the State has done

so.

           Maine    asserts      three    "compelling    state     interests"   in

support of section 1711-E(2-A): "to improve public health, to limit

annual increases in the cost of health care and to protect the

privacy of patients and prescribers" in the State's health care

system.    Me. Rev. Stat. Ann. tit. 22, § 1711-E(1-B).                Although I

agree that these interests are substantial in theory, I doubt that

the record supports the State's contention that the challenged

statute in fact advances all of them.            I am particularly skeptical

of the privacy interest.

           The     Maine   law     neither      prohibits    the    practice    of

pharmaceutical detailing nor prevents the widespread use of any

prescriber's prescribing histories.             See Rowe, 

at

170   ("The     Attorney   General's        expert     [prescriber]    witnesses

acknowledged     that   insurance        companies,    governmental    agencies,

quality assurance committees, utilization reviewers, and others

have the right and responsibility to assess their prescribing

patterns."); 

("[T]he new Law does not prevent the

pharmacies from transferring exactly the same information to the

PDIIs, so long as the information is not ultimately used for

marketing.").        Detailers      may     continue    to   devise    marketing

strategies based on the prescribing patterns of prescribers who do


                                         -57-
not choose to bar the marketing use of their information, meaning

that the one-on-one meeting with a prescriber who has invoked the

law's   protection    may    include      references     to    the    histories     of

colleagues within the same town or even the same practice.                    See 

           Given     the    wide,     permissible       dissemination         of   the

prescribing information, and the continued allowance of targeted

one-on-one detailing, prescriber privacy does not appear to be

meaningfully advanced by this statute.              Accord Rowe, 

at 173 ("The Law only marginally advances the governmental

interest in prescriber privacy.").              I therefore disagree with the

majority's analysis of the State's "interest in preventing its

prescribers from being subjected to unwanted solicitations by

detailers in Maine on the basis of their prescribing histories."

The statute does not protect a "right to be let alone"; it merely

protects prescribers who consent to interactions with detailers

from exposure to one type of message.                The prescribers may have

particular    distaste      for     sales   pitches      based       on   their    own

prescribing    histories,     but    that       discomfort    –     whether   or   not

properly labeled an issue of "privacy" – seems inadequate to

justify a content-based restriction on truthful speech of public

concern.      See   Rowe,   532     F.    Supp.    2d   at    170    ("Prescribers'

prescribing patterns are . . . a matter of public concern.").




                                         -58-
          In any event, the State's brief gives short shrift to

both the privacy and public health interests, and I find it

unnecessary to closely examine the record on those two interests

because the State's substantial interest in reducing health care

costs in Maine is sufficient to justify the statute within the

commercial speech framework.   Cf. Ayotte, 

; Sorrell,

at 449-454 (finding that Vermont's statute advances

the State's interests in both cost containment and protecting

public health).   Relying on evidence similar to that introduced in

Ayotte, the State argues that detailing is "significantly more

successful when detailers use prescriber-identifiable data," and

that reduced access to physicians' prescribing histories will

reduce the likelihood that prescribers in Maine will prescribe

"unnecessary and more expensive brand-name drugs."      I will not

rehearse in detail the nature of the evidence presented on this

issue at the Maine legislative hearings or before the district

court. It suffices to say that the record "establishes a plausible

cause-and-effect relationship between targeted detailing and higher

drug prices," 

, and that "the Attorney

General has [thus] sufficiently demonstrated that the State's

interest in cost-containment would be furthered 'to a material

degree' by the limitation on speech it seeks to achieve through

[section 1711-E(2-A)]," 

                                -59-
             To satisfy the First Amendment, the statute also must

meet the narrow tailoring prong of the Central Hudson inquiry. See

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 

, 566 (1980).         Without the benefit of our decision in Ayotte,

the district court concluded that the Maine law "substantially

fails" the narrow tailoring requirement.                      Rowe, 

at

176.    That judgment is wrong largely for the same reasons that it

was wrong in Ayotte.

             In   concluding        that        the    law    is   more   extensive        than

necessary to serve the State's interest in decreasing the influence

of drug company representatives, the district court emphasized that

the     State     did    not       address        the        concern      that        detailers

"inappropriately influenc[e] Maine prescribers by showering them

with gifts in implicit exchange for prescriptions."                          

pointed out that prescribers are "[t]rained as professionals" "to

perform a sophisticated and critical public health function."                               

It stated that these trained professionals "have access to

a broad range of sources to evaluate whether to prescribe a drug

for a particular patient."                

law unnecessarily

protects     them     "from       being    influenced         by   their     own       practice

patterns." 

the cost issue, the district court

observed that "some branded drugs end up being more cost effective

to     the   system     as    a    whole        than    their      generic       or     branded

counterparts."        

         In that sense, the court stated, the


                                            -60-
Maine law fails to "discriminate between beneficial detailing and

harmful detailing."           

and citation omitted).

The court thus concluded that "ban[ning] truthful information about

opt-out prescribers' prescription patterns is to overreach and

restrict more speech than is necessary to address the problem of

harmful detailing."       

court's narrow tailoring assessment does not

adequately    take     into    account    the    premise     from      which   it   must

proceed, i.e., that the State has shown that restricting the use of

prescriber-identifiable data advances at least one of its asserted

interests – controlling the spiraling cost of prescription drugs.

The court seems to assume that the alternatives it describes will

be just as effective in advancing that goal.

            As I have explained, the State's evidence in both Ayotte

and here supports the view that, despite the expertise of medical

professionals,       detailers     are        able   to    influence      prescribing

decisions. I also explained in Ayotte why the State could properly

conclude     that    alternative     methods         for    achieving      its      cost-

containment objective that would not burden speech, including

restricting courtesy samples and other gifts, were not equivalent.

As I noted there, "[t]he samples and gifts are merely a preparatory

step   in   the     marketing    process;       while     they   may    increase      the

prescribers'      susceptibility         to    the   sales       pitch,    the      State

reasonably concluded that it is the sales pitch itself that has the


                                         -61-
most troubling effect on the prescribers' drug choice – and is most

urgently in need of 

.39

                The fact that detailing at times has beneficial effects

does not undermine the State's conclusion that, on balance, its

harms        outweigh   its    benefits   –   particularly   where   the   State

reasonably could find that the benefits of the messages about

prescription drugs that are disseminated by detailers are "largely

achievable in other 

; see also Rowe, 

at 177.           Notably, the State's restriction on speech is



        39
       Moreover, Dr. Jerry Avorn, who also served as an expert in
this case, testified in Ayotte that other approaches had been tried
"nationally in terms of trying to restrict the freebies, trying to
provide doctors with other means of learning, requiring that
doctors take continuing ed courses," but that these strategies did
not eliminate "this massive distortion of what doctors are
prescribing and what the State, and its citizens, are paying for
drugs because of the very heavily and very effective promotional
strategies that are going on out 

.
     40
        I described in Ayotte some of the ways in which such
messages would continue to reach prescribers:

     News reports, for example, would highlight truly
     groundbreaking new therapies in a timely way and, indeed,
     pharmaceutical detailers with knowledge of physicians'
     medical specialties presumably would not need access to
     prescribing histories to effectively promote such
     innovations. Early adopters could be expected to respond
     quickly with an interest in trying the new medications –
     effectively   identifying   themselves   to   the   sales
     representatives. In addition, . . . the statute does not
     bar drug companies from alerting prescribers to newly
     discovered problems with their 

(footnotes omitted). Doctors also testified that
they learned about new drugs from medical literature, conferences,
and colleagues. 

n.64

                                          -62-
significantly more restrained than other marketing or advertising

bans that have been considered by the Supreme Court.                   See 

  (citing   cases     involving   more    comprehensive

restrictions).        As I described in Ayotte, the private setting of

the targeted messages also is relevant to the narrow tailoring

inquiry:

              This case differs from those in which the
              Court has rejected advertising bans that
              restrict the exchange of ideas in the
              "commercial marketplace." The [Act] neither
              "protects" the public from information about
              drugs nor prevents truthful advocacy by
              pharmaceutical representatives.   Instead, it
              prevents sales representatives from crafting
              personal marketing messages on the basis of
              data that credible evidence indicates has been
              used to unduly influence prescribing choices.
              The Supreme Court on multiple occasions has
              reviewed    regulation    of    such    direct
              solicitations, upholding restrictions where
              the context raised concerns about the impact
              of the marketing on the 

.

              Indeed, the narrow tailoring element of the Central

Hudson test is arguably more easily satisfied here than in Ayotte

because the statute bars the marketing use of prescribing histories

only for prescribers who affirmatively choose not to have their

data   used    for    marketing     purposes   –   narrowing     the    impact   on

protected speech.         Although the State's cost-containment objective

would have modest success, at best, if few Maine prescribers choose

to restrict the use of their prescribing data, the restriction on

protected speech also would be modest in that situation.                  I see no

                                       -63-
constitutional barrier to the State's judgment that restricting the

use of prescriber-identifiable data in the detailing messages of

only some of its prescribers would be beneficial.41

          In sum, the considerations I addressed in Ayotte to

evaluate "'whether the extent of the restriction on protected

speech is in reasonable proportion to the interest 

(quoting Edenfield v. Fane, 

, 767 (1993)),

apply here as well: "[t]he inadequacy of alternatives to satisfy

the State's interests, the context of private communications, and

the limited impact on the message sought to be 

.   My review of these factors leads me to the same

conclusion: the State "has established a 'reasonable fit' between

its abridgement of speech and its . . . goal."          

(quotation marks and citation omitted); see also Sorell, 631 F.

Supp. 2d at 455 (finding the Vermont statute to be "in reasonable

proportion to the State's interests").

          Hence, like New Hampshire, Maine has met its burden to

justify the limited restraint on commercial speech imposed by

section 1711-E(2-A).



     41
        The district court noted that, because the Maine statute
gives prescribers the option to allow use of their information,
the   pharmaceutical  companies   might   provide  incentives   to
prescribers in an attempt to persuade them not to opt out –
creating an even more troubling relationship between prescribers
and drug manufacturers. Rowe, 

at 174 n.31; 

n.35. In my view, such a scenario is too speculative to factor
into the analysis.

                               -64-
                             III. The Commerce Clause

                This case confirms the view I expressed in Ayotte that

the plaintiffs' Commerce Clause challenge raised a serious issue

that should not have been addressed in that case on the basis of

the limited record and the parties' cursory briefing.                      Maine

distances itself from the nonsensical construction of the New

Hampshire statute that was advanced by the New Hampshire Attorney

General and accepted by the Ayotte majority,42 admitting that its

statute inevitably reaches out of state to regulate sales of data

about        prescriptions   written   in   Maine.     Indeed,    the   activity

restricted by the Maine statute, logically construed, occurs almost

entirely beyond the State's borders.43

A. The Activities Regulated by the Statute

                Understanding    the   sequence   of   events    implicated   by

section 1711-E(2-A) is crucial to understanding the statute's legal

status.        To begin with the end, the statute is designed to prevent

pharmaceutical detailers working in Maine from using information



     42
       The New Hampshire Attorney General urged the court to read
the act to "'relate only to activity that takes place
domestically,'" and the panel majority adopted that view despite
recognizing that, so construed, the law "may not accomplish very
much." 

, 64.
        43
         Although the Attorney General at oral argument attempted
to avoid committing to any specific extraterritorial reach for the
statute, I agree with the majority that "[t]he text of the statute
by its terms shows section 1711-E(2-A) was intended to apply to
plaintiffs' out of state use or sale of opted-in Maine prescribers'
identifying data."

                                       -65-
about the prescribing habits of Maine prescribers to present

targeted, and therefore more persuasive, sales pitches to those

prescribers.        The    statute     does    not,   however,      regulate   the

detailers' interactions with the prescribers.                Instead, the State

seeks to achieve its objective indirectly by, in effect, placing a

red flag on information about prescriptions written by Maine

prescribers who opt into the statute's protection. The red-flagged

information may not be used, sold or transferred "for any marketing

purpose" by pharmacies, insurers and other entities that acquire it

in the course of their business.44

          In practical effect, that prohibition rarely limits any

commercial transactions in Maine.             This is so because local Maine

pharmacies     routinely       transfer   their    prescription      information

electronically to their out-of-state headquarters.45                 Although the

red flag is attached to the information when those transfers are

made, the statutory prohibition does not affect this first movement

of the data because it is not "for any marketing purpose."                     Most

prescriber-identifiable data leaves the State in this permissible

manner.      The   data   is    next   transferred    from    the    out-of-state


     44
        The statute also prohibits licensing or exchanging the
information for value. For the sake of simplicity, I will refer
primarily to the prohibitions on the sale or transfer of the data.
     45
       The record indicates that, other than the data from one
small supplier in Maine, the prescriber-identifiable information
obtained by the plaintiffs is transferred in the ordinary course of
business from retail stores located in Maine to the pharmacy
chains' out-of-state headquarters.

                                       -66-
pharmacy headquarters to the data mining companies – the plaintiffs

in this case – who also are located outside of Maine.46                  The red

flag    imposes    a    significant   restriction     on   those   out-of-state

transactions.      Although data miners use prescription information

for other reasons, including to generate reports for government and

other nonprofit recipients, the most lucrative aspect of their

business is to aggregate the information into reports that can be

sold to pharmaceutical companies for use in marketing.47

             Hence, the pharmacies and data miners, although not

themselves using the prescriber-identifiable data to market drugs,

presumably must impose a contractual obligation on their customers

not to use the information for that purpose in order to fulfill

their obligations under section 1711-E(2-A).                 See Rowe, 532 F.

Supp. 2d at 169 n.18 ("[T]he PDIIs are assigned the responsibility

to   limit   the       pharmaceutical    companies'    use   of    the   opt-out

prescriber data.").        How the State would enforce the statute if a

pharmaceutical manufacturer does not abide by such a contract with



       46
         An IMS senior vice president testified that the company
contracts with Rite Aid at its headquarters in Pennsylvania and
with CVS at its headquarters in Rhode Island.   IMS is based in
Plymouth Meeting, Pennsylvania.
       47
       Drug companies also have non-marketing uses for prescriber-
identified data, including determining the need for new drugs and
implementing prescription recall programs. 

n.29. Still, at oral argument, plaintiffs' counsel stated that
"[n]inety-five percent of what we do in selling to a pharmaceutical
manufacturer is so that it can use the information for marketing
and detail."

                                        -67-
a data miner is unclear.    Perhaps the data miners would be deemed

liable for failing to enforce the obligation unless they took

action against the offending drug company; such action might

include a refusal to continue selling the information to the

company.48

             Whatever the specific mechanism for enforcement of the

statute's prohibition, the statute's objective is to prevent the

use of any prescriber-identifiable data obtained by the drug

companies in sales pitches by the detailers in Maine who are the

statute's real target.49   As my description of the process reveals,

however, achieving that objective involves raising the red flag in

transactions that almost all occur beyond Maine's borders.   Nearly

all of the transfers between the information possessors – the


     48
       The district court described the "burden on pharmacies and
PDIIs to police their customers" as follows:

     They can still sell the opt-out information, but they
     cannot do so if their customers, the pharmaceutical
     companies, are going to use the information for a purpose
     that the Law prohibits. If the PDIIs successfully police
     their contracts with the pharmaceutical companies, as the
     Law contemplates, the pharmaceutical companies will not
     be able to include opt-out prescriber information in
     marketing their products. If they do not, then they, not
     the pharmaceutical companies, are subject to sanction.

at 169.
     49
        The State argues that the record contains no evidence about
the transactions between the plaintiff data miners and the drug
manufacturers. IMS, however, asserts in its brief that none of its
subscribers are located in Maine, and it cites the testimony of
Hossam Sadek, a senior vice president of the company, who stated
that he knew of no IMS customers in the State.

                                 -68-
pharmacies and data miners – and the information recipients – the

data miners and pharmaceutical companies – are made out of state.

So too are any contractual promises by the recipients to abide by

the statute's limitation.

           The       plaintiffs        complain     that     this      significant

extraterritorial effect is impermissible under the dormant Commerce

Clause.   The State, however, maintains that the statute has only a

"spillover effect" beyond its borders, and it argues that the law

applies only to "entities either located in Maine or having nexus

with Maine," i.e., those sufficiently connected to the State to

meet the requirements for personal jurisdiction. The State asserts

that it is "irrelevant" that the main computers of the large retail

pharmacy chains are located outside Maine because Maine is the

source    of   the    restricted        information,       and   the    electronic

prescription data is initially entered into in-state computers.

The State further emphasizes that the prescriptions are written by

prescribers licensed by Maine and filled almost exclusively by

State-licensed pharmacies, giving Maine a substantial interest in

governing the dissemination and use of the prescription data.

           The   difficulty       of   evaluating    the    parties'    competing

depictions of section 1711-E(2-A) begins with the choice of an

appropriate framework for analysis.




                                        -69-
B. Identifying the Correct Analytical Approach

           The Supreme Court has articulated various "protocol[s]

for dormant Commerce Clause analysis," Dep't of Revenue of Ky. v.

Davis, 

, 338 (2008), none of which seems fully apt

here. This is plainly not an instance of discriminatory purpose or

treatment in which the statute should be deemed per se invalid

because it favors in-state over out-of-state interests. See, e.g.,

Alliance of Auto. Mfrs. v. Gwadowsky, 

, 35-36 (1st Cir.

2005) (noting that the "core purpose" of the dormant Commerce

Clause is "to prevent states and their political subdivisions from

promulgating protectionist policies" (quotation marks and citation

omitted)).   The law imposes the same burden on every competitor,

and out-of-state entities would gain no advantage by relocating to

Maine.50

           Plaintiffs, unsurprisingly, have relied primarily on the

extraterritoriality doctrine, and the proposition that a statute

may be deemed per se invalid if it "directly controls commerce

occurring wholly outside the boundaries of a State." Healy v. Beer

Inst., Inc. 

, 336 (1989); see also Wine & Spirits



     50
       Price controls that favor in-state businesses, assessments
that function as protective tariffs, and regulations that cap in-
state prices for goods produced out of state are classic examples
of measures that run afoul of this aspect of the dormant Commerce
Clause. See, e.g., Pharm. Research & Mfrs. of Am. v. Walsh, 

, 669-70 (2003); Or. Waste Sys., Inc. v. Dep't of Envtl.
Quality, 

, 99 (1994); Healy v. Beer Inst., Inc., 

, 336 (1989).

                               -70-
Retailers, Inc. v. Rhode Island ["Wine & Spirits II"], 

,

15 (1st Cir. 2007); Pharm. Research & Mfrs. of Am. v. Concannon

["PhRMA"], 

, 79-80 (1st Cir. 2001), aff'd sub nom.

Pharm. Research & Mfrs. of Am. v. Walsh, 

(2003).      Such

laws may subject activities to more than one state's regulations,

leading to the possibility of conflicting obligations.       See, e.g.,

; CTS Corp. v. Dynamics Corp. of Am., 

, 88-89 (1987); Peter C. Felmly, Comment, Beyond the Reach

of States: The Dormant Commerce Clause, Extraterritorial State

Regulation, and the Concerns of Federalism, 

. Rev. 467, 509

(2003) (observing that the extraterritoriality "principle ensures

that a state will not overstep its bounds and unreasonably trample

upon the authority of another sovereign").      Plaintiffs also invoke

the so-called Pike balancing test, which is applied to laws that

regulate   evenhandedly   and   have   only   "incidental"   effects   on

interstate commerce. See Pike v. Bruce Church, Inc., 

,

142 (1970);51 see also United Haulers Ass'n, Inc. v. Oneida-Herkimer

Solid Waste Mgmt. Auth., 

, 346 (2007).52



     51
        The Court in Pike held that, when a statute regulates
evenhandedly to effectuate a legitimate local purpose, and has only
incidental effects on interstate commerce, "it will be upheld
unless the burden imposed on such commerce is clearly excessive in
relation to the putative local 

.
     52
       I disagree with the majority's assertion that the plaintiffs
have waived any Pike balancing argument. Given the similarity of
the inquiries under the different strands of the dormant Commerce
Clause, I see no reason to disregard the argument here.

                                 -71-
            Neither of these latter alternatives is a good fit for

the present circumstances. The per se extraterritoriality analysis

may appear literally applicable, given that the statute's red flag

has a direct impact almost exclusively on out-of-state commerce.

Yet, as I observed in Ayotte, "whether extraterritoriality is

impermissible in every instance, or whether it transgresses the

dormant    Commerce   Clause   only    when   the   challenged   statute    is

discriminatory or protectionist in nature, appears to be [a]

relevant 

(citing 

).     The Maine law does not by its terms impose restraints on

non-domestic businesses, and the imbalance between in-state and

out-of-state effect is a matter of happenstance not design.                The

statute does not seek to achieve conformity between in-state and

out-of-state commerce.53 Additionally, there is no risk of conflict


     53
        The pursuit of such consistency is a feature of the most
prominent Supreme Court extraterritoriality precedents. In 

, the challenged Connecticut statute expressly
required out-of-state shippers to affirm that their Connecticut
prices were no higher than the prices being charged in bordering
states, and the New York statute at issue in Brown-Forman
Distillers Corp. v. New York State Liquor Authority, 

,
579 (1986), required liquor producers and distillers doing business
in the State to affirm comparable in-state and out-of-state
pricing. In Baldwin v. G.A.F. Seelig, Inc., 

(1935),
the Court struck down the New York Milk Control Act, which
prescribed minimum prices for milk that had the effect of setting
out-of-state milk prices. 

In line with those cases,
the Seventh Circuit recently struck down an Indiana law that
subjected out-of-state loans entered into by Indiana residents to
the requirements of Indiana's consumer law if the out-of-state
creditor had advertised or solicited sales in Indiana. Midwest
Title Loans, Inc. v. Mills, 

, 662, 667-68 (7th Cir.
2010).

                                      -72-
with other states' regimes.      No other State has a stake in the use

of prescriber-identifiable data in Maine or any obvious interest in

the use of Maine prescriber information in their own locales.

           Indeed, it is arguable that, despite the statute's impact

on commercial transactions that occur almost entirely out of state,

the   commerce   it   controls   is   not   "wholly   outside   [Maine's]

boundaries."     

.     The subject matter of the

law is data that both originates in Maine and is intended for

marketing use in Maine.    Maine's aim is to regulate on a matter of

public welfare only within Maine. Cf. Midwest Title Loans, Inc. v.

Mills, 

, 667-68 (7th Cir. 2010) (invalidating Indiana

statute that sought to protect Indiana residents from predatory

lending practices by businesses located in other states).         On the

other hand, it is difficult to characterize the statute's effect on

out-of-state commerce as "incidental" when its prohibition in fact

has its primary impact outside the State.        See, e.g., 

("The critical inquiry is whether the practical effect

of the regulation is to control conduct beyond the boundaries of

the State.").

           The various labels ordinarily are invoked because they

are associated with different levels of scrutiny. We have observed

that a statute that regulates evenhandedly "engenders a lower level

of scrutiny," Wine and Spirits 

(quotation marks

and citation omitted), while "[a] statute is per se invalid if it


                                  -73-
regulates commerce wholly outside the state's borders," 

Identifying the appropriate label should not distract us, however,

or bog us down at the threshold of analysis.     Despite the different

protocols for dormant Commerce Clause inquiry, the Supreme Court

has observed that "there is no clear line separating" the various

types   of    state   regulation    and   that   the   same   "critical

consideration" applies to each category: "the overall effect of the

statute on both local and interstate activity."           Brown-Forman

Distillers Corp. v. New York State Liquor Auth., 

, 579

(1986) (referring to regulations that are "virtually per se invalid

under the Commerce Clause, and the category subject to the Pike v.

Bruce Church balancing approach"); see also 

n.14 (noting the same "critical consideration" in determining

"whether the extraterritorial reach of a statute violates the

Commerce Clause"); Am. Booksellers Found. v. Dean, 

, 102

(2d Cir. 2003).

             This dual concern is an inevitable byproduct of our

system of federalism.    The Court has often remarked in its dormant

Commerce Clause cases that States "retain authority under their

general police powers to regulate matters of legitimate local

concern, even though interstate commerce may be affected."       Maine

v. Taylor, 

, 138 (1986) (quotation marks and citation

omitted); see also, e.g., 

; cf. Garcia v. San

Antonio Metro. Transit Auth., 

, 546 (1985).       Hence, in


                                   -74-
reviewing a statute challenged under the dormant Commerce Clause,

we are always guided by "the Constitution's special concern both

with the maintenance of a national economic union unfettered by

state-imposed limitations on interstate commerce and with the

autonomy of the individual States within their respective spheres."

-36 (footnote omitted).

             Indeed, even the "rigorous form of review" applicable to

discriminatory legislation allows exemption for a statute that

"furthers a legitimate local objective that cannot be served by

reasonable non-discriminatory means."               Wine and Spirits 

.      Local needs also must qualify the "near-fatal rule of

per se invalidity" for statutes that regulate extraterritorially.

See 

; 

(observing that "[o]ne may

infer" from language in CTS 

, that "where a

state has a significant interest in regulating a particular aspect

of   interstate     commerce,     it   may    do    so,    regardless     of     the

extraterritorial effect of the legislation, if the regulation also

affects a substantial number of in-state residents").

            I thus see the most relevant and appropriate question as

simply    whether   Maine's     interests     are   sufficiently       weighty   to

justify    any   burdens   its   law    imposes     on    interstate    commerce.

Whatever the label and however we describe the level of scrutiny,

the outcome here is the same.




                                       -75-
C. Assessing the Local Interest and the Burden on Interstate
Commerce

               As discussed in Section II above, I agree that the State

has a substantial interest in reducing the cost of prescription

drugs    for    its    residents    and    that   the    State    could    reasonably

conclude       that    section   1711-E(2-A)      advances       that    interest    by

regulating       the    dissemination       of    information       revealing       the

prescribing histories of Maine's licensed health care providers.

Cf. 

.              The statute's importance to the

State is no different in the context of a Commerce Clause inquiry

than in the First Amendment setting.

               The other side of the balance is not the same, however.

The conclusion that the statute is "narrowly tailored" under the

Central Hudson test for commercial speech, 

,

does not tell us whether the provision impermissibly burdens

interstate commerce. As I have described, the statute does in fact

regulate specific activities that occur mostly out of state.                        The

impact    on    the    plaintiffs     is    not   merely       "spillover"    from   a

prohibition directed at others; they are among the categories of

entities – PDIIs – affected directly by the statute.

               Moreover, the statute's impact on PDIIs is potentially

enormous. Sales of prescriber-identifiable data are the bread-and-

butter of the medical data mining business, producing $1.75 billion

in revenue for plaintiff IMS Health alone in 2005.                      Although only

three    states       have   thus   far    enacted      laws    designed    to   limit

                                          -76-
detailers' access to prescribers' identifying information, they are

at the front of a wave of similar legislation.                See Rowe, 532 F.

Supp. 2d at 180 n.41 (noting testimony that seventeen to twenty

other states were considering similar laws); 

   (stating   that   "numerous    other    states       have   [bills]      that

similarly restrict the sale of prescription drug data that are

currently pending in legislative committees").

              Hence, a conclusion that section 1711-E(2-A) comports

with    the   dormant    Commerce    Clause    could    eventually       lead    to

elimination of any market for prescriber-identifiable data, which

the plaintiffs have argued would jeopardize the viability of their

businesses.     See 

n.66 ("Plaintiffs theorize

that    the   pharmaceutical   companies      would    be    unwilling    to    pay

substantial sums for information they cannot use in marketing,

eliminating the data miners' biggest customers – thereby cutting

off the commercial funding that subsidizes the research and other

non-commercial uses of the data.").54          Plaintiff IMS asserts that

it will cost hundreds of thousands of dollars for it to adjust its

systems to comply with the statute's restrictions; plaintiff Source

Healthcare estimated that it would spend 10,000 employee hours to

comply with Maine's and Vermont's laws.


       54
       The fact that only 259 of Maine's 7,500 prescribers opted
into the statute's confidentiality protection during the period in
which it has been suspended by the preliminary injunction tells us
little about the law's likely impact. More activity presumably
will occur once the injunction is lifted.

                                     -77-
           The "possible effects on the profits of the individual

manufacturers" is not, however, the concern of the dormant Commerce

Clause.   

.      Our court previously has observed

that "the Commerce Clause . . . 'protects the interstate market,

not particular interstate firms, from prohibitive or burdensome

regulations.'"   Pharm. Care Mgmt. Ass'n v. Rowe, 

, 313

(1st Cir. 2005) (quoting Exxon Corp. v. Gov. of Md., 

,

127-28 (1978)); see also 

("[T]he fact that a

law may have devastating economic consequences on a particular

interstate firm is not sufficient to rise to a Commerce Clause

burden." (quotation marks and citations omitted)).                Even if the

statute meant the demise of the data-mining industry as a whole –

an outcome I doubt, see infra note 22 – any ill-effects from that

result would "relate[] to the wisdom of the statute, not to its

burden on commerce."    Exxon 

.         The point is

perhaps more easily understood in a different context.                If, for

example, every state decided to ban the use of firecrackers because

of the risk of injury, the dormant Commerce Clause would not trump

the legislative safety concerns and insulate the fireworks industry

from extinction.

           Neither   national      uniformity    nor   any   of    the    other

traditional concerns underlying the dormant Commerce Clause are

implicated   here.     The   law   does    not   "erect   barriers       against

interstate trade," Lewis v. BT. Inv. Managers, Inc., 

,


                                    -78-
35 (1980), and its target is not "interstate commerce" as such.

Rather, the transactions governed by the statute are restricted

only because they are subsidiary steps in the regulation of in-

state activity.55 Indeed, the law's effect on individual businesses

would be no different if every PDII were based in Maine.                   Nor does

Maine's      decision    to   restrict    the   use    of   certain     prescriber-

identifiable data make similar legislation more or less appropriate

or necessary in other states.            There is nothing in Maine's statute

that affects other states' choices about whether, or how, to

regulate prescriber-identifiable data within their own borders. As

the    Supreme   Court    observed   in    Exxon      Corp.,   "[t]he    evil   that

appellants perceive in this litigation is not that the several

States will enact differing regulations, but rather that they will

all conclude that [similar] provisions are 

.        However, "[i]n the absence of a relevant congressional

declaration of policy, or a showing of a specific discrimination

against, or burdening of, interstate commerce, we cannot conclude

that the States are without power to regulate in this area."                    

       55
        The "subsidiary" nature of the out-of-state transactions is,
of course, a function of the statute's purpose to restrict speech
in Maine. Although that in-state speech objective strengthens the
State's Commerce Clause position, the indirect regulatory strategy
– as I have explained – creates the First Amendment-Commerce Clause
dance and unnecessarily complicates the constitutional analysis.


                                         -79-
           Nor do I see a way in which Maine could have promoted its

interest   "'with   a   lesser   impact   on   interstate   activities,'"

Minnesota v. Clover Leaf Creamery Co., 

, 471 (1981)

(quoting 

) – a factor that is considered in

Pike balancing.     See, e.g., U & I Sanitation v. Columbus, 

, 1070-71 (8th Cir. 2000).       If Maine had regulated only in-

state activity – directly barring detailers working in Maine from

using the opted-out prescribers' data in their sales pitches – the

impact on data miners would be the same.          In such a regime, the

out-of-state data miners would not be prohibited from selling the

prescriber-identifiable     data   for    marketing   purposes,   but   the

pharmaceutical companies would have no reason to buy it.56

           In sum, I conclude that section 1711-E(2-A) survives

dormant Commerce Clause scrutiny even though in practical effect it

regulates activity that occurs primarily beyond Maine's borders.



     56
        The actual impact on the plaintiffs of legislation
regulating the use of prescriber-identifiable data remains to be
seen. As the district court noted, the law "does not prevent the
pharmaceutical companies from marketing their products and the
companies may resort to more general, less tailored marketing."
Rowe, 

at 174. It thus may be that the demand for
aggregated data about prescribing trends will change, but not dry
up. For example, the statute appears to permit detailers to use
aggregated data based on specialities or zip codes. See 

n.66. Moreover, if empirical data gathered in the
future on the statute's impact shows that less particularized, less
efficient detailing is negating the cost savings Maine hopes to
achieve, the State may be persuaded to change its approach to the
problem. Cf. Clover Leaf Creamery 

n.17 ("The
existence of major in-state interests adversely affected by [a law]
is a powerful safeguard against legislative abuse.").

                                   -80-
The burden on interstate commerce (the reduction in the value of a

particular type of business) is not the kind of burden that raises

constitutional concerns.       To the extent that burden is relevant to

the Commerce Clause analysis, it is easily outweighed by the

State's substantial interest in bringing the cost of prescription

drugs – and health care expenses in general – under control.            Cf.

Pharm. Care Mgmt. 

(describing a law aimed at

"reduc[ing] the costs of, and increas[ing] the public's access to,

prescription drugs" as "designed to deal with 'one of the serious

problems of our time'").

           I therefore agree that the judgment of the district court

should be reversed.

                   IV. The Focus of Future Litigation

           This case has allowed us to put to rest the Commerce

Clause challenge that was not properly teed up in Ayotte.                 In

addition, in the period between our reviews of New Hampshire's and

Maine's similar statutes, Stevens has reinforced my view that laws

regulating   the    messages   of   pharmaceutical    detailers     restrict

protectible speech, not conduct.           Thus, as more of these cases

evolve   across    the   country,   the    legal   argument   and    factual

development should be framed by the Supreme Court's commercial

speech doctrine under the First Amendment.

           That doctrine is the subject of ongoing debate among

commentators and in the courts, including within the Supreme Court.


                                    -81-
Much of the ferment focuses on the narrow tailoring prong of the

Central Hudson inquiry and how close the fit must be in any

commercial   speech     case      between       the    State's     interest     and    the

challenged restriction on speech.                See Greater New Orleans Broad.

Ass'n, Inc. v. United States, 

, 184 (1999) (recognizing

the   advocacy   among      judges,       scholars      and   others      for   "a    more

straightforward and stringent test for assessing the validity of

government restrictions on commercial speech"); see also Thompson

v. W. States Med. Ctr., 

, 388 (2002) (Breyer, J.,

dissenting) (chastising the majority for applying the commercial

speech    doctrine    "too        strictly"      in     finding     that    a    statute

prohibiting the advertising of compounded drugs was not narrowly

tailored); 

(discussing "the debate on

Central Hudson's continuing viability"); Elizabeth Spring, Note,

Sales Versus Safety: The Loss of Balance in the Commercial Speech

Standard in Thompson v. Western States Medical Center, 37 U.C.

Davis L. Rev. 1389, 1404 (2004) ("[T]he Court is now applying the

Central   Hudson     test    in    a   manner        approaching    strict      scrutiny

review.").

           In    addition,        there    is    a    claim   by   some    that      these

particular laws should not be assessed as regulations of commercial

speech, with the lesser scrutiny that attends such measures, but

rather as content-based regulations of truthful speech "on matters

of profound public importance."             

; see also Rowe, 532


                                          -82-
F. Supp. 2d at 167 n.14 (describing as a "thorny question" whether

Maine's content-based regulation should be given intermediate or

strict scrutiny and raising the possibility that "the speech here

is not purely commercial speech and is subject to strict scrutiny"

because it is "a matter of public concern"); cf. 

("Even if the prescription restraint laws were subject to the more

forgiving standard applicable to regulations of purely commercial

speech, however, they would still be unconstitutional because they

violate the core principle that the government may not restrict

even commercial communication merely to block the dissemination of

truth.").   Although in Ayotte I found no merit in the argument that

New Hampshire's statute should be analyzed as a content-based

restriction on speech subject to strict scrutiny, see 

n.47; accord Sorrell, 

at 447-48,57 the

contrary view has worthy proponents and undoubtedly deserves close

consideration.

            Yet another source of difficulty is the quality of the

record a state legislature must amass to prove that a statute

advances its interest and extends no more broadly than necessary to

achieve its objectives.    I concluded in Ayotte that the district

court had held the Attorney General to an overly demanding standard


     57
        The district court in Sorrell observed that, "[b]y
definition, the 'Supreme Court's commercial speech doctrine . . .
creates a category of speech defined by content but afforded only
qualified protection.'" 

at 447-48 (quoting Trans
Union Corp. v. FTC, 

, 1141-42 (D.C. Cir. 2001)).

                                -83-
of proof.   Here, too, the court underestimated the strength of the

State's showing.    As I explained in Ayotte, a state legislature's

investigation cannot reasonably be expected to match the exhaustive

investigation Congress conducts in connection with complex federal

legislation.     

(referring to the "'tens of

thousands of pages' of materials" acquired during three years of

Congressional    hearings    on    provisions    of   the   Cable   Television

Consumer Protection and Competition Act of 1992).

            Although the extent of the required proof may differ, the

question in both federal and state contexts is the same: "whether

the government is able to support its restriction on speech by

'adduc[ing] either empirical support or at least sound reasoning on

behalf of its measure[].'"        

(quoting    Turner Broad. Sys.,

Inc. v. FCC, 

, 666 (1994)).               A further complexity,

however,    is   whether    "the    general     principle    of     legislative

deference" should operate the same way in both settings, despite

differences in the scope of the underlying record.            

Broadcasting, the Supreme Court observed that Congress's findings

were entitled to "deference in part because the institution is far

better equipped than the judiciary to amass and evaluate the vast

amounts of data bearing upon legislative questions." Turner Broad.

Sys., Inc. v. FCC, 

, 195 (1997) (quotation marks and

citation omitted).




                                     -84-
           The   district      court    in    this   case   puzzled   over   the

appropriate level of deference for the legislature's findings,

noting the subtle "distinction between judicial deference and

judicial respect to a legislature in a First Amendment case."                

at 178.      It noted the Ayotte trial court's conclusion

that the legislature's "predictive judgments" were "entitled to

respect, but not deference, because there was nothing in the record

'to support a conclusion that the legislature had established

expertise in the regulation of prescriber-identifiable data.'" 

Health Inc. v. Ayotte, 

, 177 n.12

(D.N.H. 2007)).58     Yet the court also cited the Supreme Court's

statement in Turner Broadcasting that "the 'obligation to exercise

independent judgment when First Amendment rights are implicated is

not a license to reweigh the evidence de novo, or to replace

[legislative] factual predictions with our own.'"              

Indeed, the Supreme Court has "permitted litigants to justify

speech    restrictions    by    reference       to   studies   and    anecdotes

pertaining to different locales altogether, or even, in a case

applying strict scrutiny, to justify restrictions based solely on

history, consensus, and 'simple common sense.'"                Florida Bar v.

Went For It, Inc., 

, 628 (1995) (citations omitted).



     58
       The district court in Vermont also was faced with competing
arguments about "the nature and amount of deference" that should be
afforded to "the predictive judgments and factual findings of the
Legislature." Sorrell, 

at 448-49.

                                       -85-
            The legislative records in New Hampshire and Maine were

necessarily limited.           Given the novelty of their statutes, neither

State   could      offer      "empirical    data    showing   the   extent      of   the

influence     of     prescriber-specific           information      on   physicians'

decision-making"         or    proving     the    cost-cutting   impact    of    their

.               Both States, however, adduced

evidence    of     the   impact     of    detailing    generally     and   presented

anecdotal evidence "strongly indicating that sales pitches based on

specific prescribing patterns have a particularly persuasive impact

on drug choice."           

Rowe, 

at 172.                  New

Hampshire offered expert evidence in defense of its view that

alternative      strategies,       less    burdensome    on   speech,      would     not

suffice.     

.               At this point in time, such

evidence was sufficient in each case to "establish[] a factual

basis justifying the initiative."                

  Equivalent evidence

may not be enough to support the adoption of similar legislation in

other states, however, if more extensive quantifiable data becomes

available.       Cf. 

-94 ("[I]t will be important

going forward for the State to try to measure the cost-containment

effect of its initiative, and it is possible that this ongoing

assessment will indicate that the measure is not as effective as

the State had hoped.").

            Without a doubt, the States must have flexibility to

experiment with measures that will help them address the serious


                                           -86-
problem of spiraling drug costs. At the same time, the restriction

of speech based on its content is a serious constitutional matter.

The tension between those principles in laws such as those enacted

in New Hampshire, Maine and Vermont presents a challenge to the

Supreme Court's commercial speech jurisprudence that warrants the

Court's attention and guidance.




                              -87-