Pharmaceutical Research and Manufacturers of America v. Sean O'Day, in His Official Capacity as Director of the Oregon Department of Consumer and Business Services

An Oregon statute, commonly known as HB 4005, requires a pharmaceutical manufacturer to create reports that include narrative justifications for the prices at which the manufacturer has chosen to offer its products for sale. A state agency then must publish all such reports on its website. Even if a report includes confidential information, the agency must publish it—destroying the value of any trade secrets that it contains—whenever the agency deems publication to be in “[t]he public interest.” A divided Ninth Circuit panel upheld HB 4005 under the First Amendment. The court held that intermediate— rather than strict—scrutiny applies to all “government reporting requirements” that compel the disclosure of “product-specific” information. In purporting to apply such intermediate scrutiny, the court further held that Oregon’s asserted interest in correcting “information asymmetries” was sufficient, by itself, to sustain the law. The Ninth Circuit also rejected a challenge under the Takings Clause to HB 4005’s requirement that trade secrets must be published whenever the State deems publication to be in “the public interest.” The court held that a drug manufacturer has no investment-backed expectations in the secrecy of its trade secrets—and thus can never assert takings claims—because it “chooses” to operate in a “highly regulated” market. The questions presented are:

1. Whether a government reporting requirement is subject to intermediate First Amendment scrutiny, and satisfies such scrutiny, so long as it aims to correct “information asymmetries” that are “product-specific.”

2. Whether entities that operate in “highly regulated” industries categorically lack reasonable investmentbacked expectations in their trade secrets for purposes of the Takings Clause. (i)