IMS Health Inc. v. Mills

616 F.3d 7, 2010 U.S. App. LEXIS 16129, 2010 WL 3025496

• Court: Court of Appeals for the First Circuit
• Decided: August 4, 2010
• Docket: 08-1248
• Status: Published

Opinions

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 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 pharmaceutical products, are covered in the text of the law, as are others. See id. § 1711-E(1)(A), (I). 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, 532 F.Supp.2d 153, 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 identical, New Hampshire statute against plaintiffs’ constitutional challenges, a ruling that binds this panel. See IMS Health Inc. v. Ayotte, 550 F.3d 42 (1st Cir.2008), cert. denied, — U.S.—, 129 S.Ct. 2864, 174 L.Ed.2d 578 (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 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., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970).

I. Factual Background

The relevant facts are undisputed.²

Prescriber-identifying data is used for many purposes, but this ease concerns restrictions on only one of those uses: 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(l)(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 Al. 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 persuaded to switch brands or prescribe more of a detailer’s brand of products.³ See Saul, supra, at Al.

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 prescriberidentifying 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 Saul, supra, at Al.

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 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. Hunkier, 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.” Saul, supra, at Al. Aggregated survey data confirms that physicians have a predominantly negative view of detailing. See P. Manchanda & E. Honka, The Effects and Role of Direct-toPhysieian Marketing in the Pharmaceutical Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 788-91 (2005).

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 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 Saul, supra, at Al. Plaintiffs admit that most of their reports and databases are destined — and designed— for pharmaceutical manufacturers to instruct detailers where to focus 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 Id. Plaintiffs’ products 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, 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 preseriber-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 id.

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.” Id. § 1711-E(1-B). Only these Maine prescribers can opt in, and even opted-in prescribers’ identifying data can be used for any purpose other than detailing. See id.

Maine enacted 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 Id. § 1711-E(1-A). The Maine legislature found that “[pjatients and prescribers have requested that the legislature provide a mechanism for protecting the confidentiality of identifying prescription drug information from use for marketing purposes.” Id. § 1711-E(1-A)(B). “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 “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. Id. § 1711-E(1~A)(C). “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.” Id. § 1711-E(1-A)(D).

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. Id. § 1711-E(4)(A). 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 identifying information through one of three methods.¹⁰ Id. § 1711-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 Id. § 1711-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 preseribers’ identifying data for a marketing purpose, unless the prescriber revokes the protection. See id. § 1711-E (2-A), (4) (A) (3).

Once plaintiffs obtain prescriber-identifying data from pharmacies, plaintiffs generate certain databases and reports designed to facilitate detailing. If plaintiffs include opted-in Maine preseribers’ identifying data in these products, they have “used” the data for a marketing purpose, in violation of section 1711-E(2-A). See id. § 1711-E(2-A). 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 id.

Once pharmaceutical manufacturers obtain these detailing-oriented databases and reports, they generate individualized reports for detailers, who then use individual preseribers’ data to target preseribers in Maine. Section 1711-E (2-A) does not explicitly limit detailers’ use of prescriberidentifying 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, id. § 1711-E(3), 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.

Section 1711~E(2-A) was to go into effect on January 1, 2008, id. § 1711-E(2-A), but because plaintiffs obtained a preliminary injunction before then, Maine has been prevented from enforcing it. See Rowe, 532 F.Supp.2d at 157. As of September 2009, notwithstanding the injunction, 259 Maine preseribers 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’ conduct. 550 F.3d at 51-54. 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, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Id. at 54-60. 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. Id. at 55. 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. Id. at 55-58. 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. Id. at 58-60.

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. 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 id. § 1711-E(2-A). 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 id. § 1711-E(1-A), mth 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 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. See 550 F.3d at 55-58. There is no basis for considering these arguments anew.

We reject plaintiffs’ contention that United States v. Stevens, — U.S. — , 130 S.Ct. 1577, 176 L.Ed.2d 435 (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 id. at 1585-87. By contrast, Ayotte’s initial holding was that the New Hampshire law primarily regulated conduct, not speech. 550 F.3d at 51-54. Ayotte did suggest that any speech regulated was of such minimal value that it likely fell outside of First Amendment protections. Id. at 51-52. 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. Further, Ayotte’s alternate holding was that the New Hampshire law would be upheld even if it regulated protected speech. Id. at 54-60.

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 them individual prescribing histories.

This purpose is not solely about protecting prescribers’ expectation that their identifying data will remain categorically private. See Rowe, 532 F.Supp.2d. 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.

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 Hudson, 447 U.S. at 561, 100 S.Ct. 2343. This circuit and others continue to apply this definition. See Ayotte, 550 F.3d at 54; see also United States v. Philip Morris USA Inc., 566 F.3d 1095, 1143 (D.C.Cir.2009); BellSouth Telecomms., Inc. v. Farris, 542 (6th Cir.2008); Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 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., 463 U.S. 60, 66-68, 103 S.Ct. 2875, 77 L.Ed.2d 469 (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, 182 F.3d 1224, 1233 n. 4 (10th Cir.1999).¹⁴

Under the Central Hudson framework, commercial speech is protected if it is “neither misleading nor related to unlawful activity.” 447 U.S. at 564, 100 S.Ct. 2343. 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.” Id. at 566, 100 S.Ct. 2343; see also Ayotte, 550 F.3d at 55.

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 Justices characterized as ‘the most comprehensive of rights and the right most valued by civilized men.’ ” Hill v. Colorado, 530 U.S. 703, 716-17, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000) (quoting Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (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, 397 U.S. 728, 736-38, 90 S.Ct. 1484, 25 L.Ed.2d 736 (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., 345 F.3d 850, 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, 245 F.3d 809, 818 (D.C.Cir.2001) (recognizing the government’s “substantial interest” in “protecting the privacy of 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.” Ayotte, 550 F.3d at 55 (quoting Edenfield v. Fane, 507 U.S. 761, 770-71, 113 S.Ct. 1792, 123 L.Ed.2d 543 (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. Me.Rev.Stat. Ann. tit. 22, § 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, 550 F.3d at 59. Targeted prohibitions are by definition less restrictive than a categorical ban. See United States v. Playboy Entm’t. Group, Inc., 529 U.S. 803, 815, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); see also Mainstream Mktg. Servs., Inc. v. FTC, 358 F.3d 1228, 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. Servs., 358 F.3d at 1242; see also Fraternal Ord. of Police v. Stenehjem, 431 F.3d 591, 599 (8th Cir.2005); Nat'l Fed’n of the Blind v. FTC, 420 F.3d 331, 342 (4th Cir.2005); Bland v. Fessler, 88 F.3d 729, 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. Bland, 88 F.3d at 733.

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 costs. 550 F.3d at 59-60. These alternatives do virtually nothing to advance Maine’s interest in protecting opted-in Maine prescribers’ identifying data 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 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, 480 F.3d 597, 603 (1st Cir.2007) (quoting United States v. Councilman, 418 F.3d 67, 84 (1st Cir.2005) (en banc)) (internal quotation marks omitted); see also Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 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,” 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 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, — U.S. —, 130 S.Ct. 1324, 1339 & n. 7, 176 L.Ed.2d 79 (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 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. Ayotte, 550 F.3d at 61; see also Adar v. Smith, 597 F.3d 697, 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 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,” id. § 1711-E(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.” Id. § 1711-E(1-A)(C). The statutory text also identifies specific harms arising from these transactions — invasions of prescribers’ 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 id. § 1711-E(1)(G-1), (2-A), (4). Every intermediate step is limited to transactions involving these prescribers’ identifying data. See id. § 1711-E(2-A). The law’s ultimate effect is to prevent detailers with Maine routes from targeting Maine prescribers with their own prescribing histories. Id. § 1711-EG-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, 113 Me. 389, 94 A. 482, 483 (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, 236 A.2d 708, 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.” 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 on or connection to Maine’s residents or licensees. See, e.g., State v. Hayes, 603 A.2d 869, 870 (Me.1992) (upholding the extraterritorial enforcement of Maine’s lobster laws to vessels registered in Maine); Dissell v. Trans World Airlines, 511 A.2d 441, 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.

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, 895 A.2d 944, 951 (Me.2006) (quoting Bagley v. Raymond Sch. Dep’t, 728 A.2d 127, 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 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, 553 U.S. 328, 337-38, 128 S.Ct. 1801, 170 L.Ed.2d 685 (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, 477 U.S. 131, 138, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (quoting Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 36, 100 S.Ct. 2009, 64 L.Ed.2d 702 (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., 550 U.S. 330, 344, 127 S.Ct. 1786, 167 L.Ed.2d 655 (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.’ ” Davis, 553 U.S. at 337-38, 128 S.Ct. 1801 (quoting New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273, 108 S.Ct. 1803, 100 L.Ed.2d 302 (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., 481 U.S. 69, 88-89, 107 S.Ct. 1637, 95 L.Ed.2d 67 (1987); S. Pac. Co. v. Ariz. ex rel. Sullivan, 325 U.S. 761, 767-68, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945), or laws with minimal in-state benefits and a disproportionate impact on interstate commerce, see Pike, 397 U.S. at 142, 90 S.Ct. 844.

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. Davis, 553 U.S. at 337-39, 128 S.Ct. 1801.²⁶

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 Davis, 553 U.S. at 342, 128 S.Ct. 1801; United Haulers, 550 U.S. at 344-45, 127 S.Ct. 1786. States are “vested with the responsibility of protecting the health, safety, and welfare of [their] citizens.” United Haulers, 550 U.S. at 342, 127 S.Ct. 1786. 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.” Davis, 553 U.S. at 338, 128 S.Ct. 1801 (quoting Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (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. CTS, 481 U.S. at 89, 107 S.Ct. 1637. 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 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 Haulers, 550 U.S. at 345, 127 S.Ct. 1786. 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., 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989) (emphasis added); see also Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30, 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 also operate as a regulation of commerce,” requiring “appraisal and accommodation of the competing demands of the state and national interests involved.” S. Pac. Co., 325 U.S. at 768-69, 65 S.Ct. 1515.²⁹

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 charge out of state. See Healy, 491 U.S. at 337-40, 109 S.Ct. 2491; Brown-Forman, 476 U.S. at 582-84, 106 S.Ct. 2080; Baldwin, 294 U.S. at 521-22, 55 S.Ct. 497. The second are statutes that “force an out-of-state merchant to seek regulatory approval in one State before undertaking a transaction in another.” Healy, 491 U.S. at 337, 109 S.Ct. 2491; see also Edgar v. MITE Corp., 457 U.S. at 627, 642-43, 102 S.Ct. 2629 (plurality opinion). Even these statutes are not invariably struck down. See CTS, 481 U.S. at 88-89, 107 S.Ct. 1637 (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 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 CTS, 481 U.S. at 93, 107 S.Ct. 1637.³² Other circuits have upheld similar laws on this basis. See, e.g., Quik Payday, Inc. v. Stork, 549 F.3d 1302, 1308-09 (10th Cir.2008); S. Union Co. v. Mo. Pub. Serv. Comm’n, 289 F.3d 503, 507-08 (8th Cir.2002); Baltimore Gas & Elec. Co. v. Heintz, 760 F.2d 1408, 1421-27 (4th Cir.1985); cf. Am. Booksellers Found v. Dean, 342 F.3d 96, 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 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. Buchel, 593 F.3d 38, 65 (1st Cir.2010).

This claim is also meritless. “State laws 'frequently survive this Pike scrutiny,” Davis, 553 U.S. at 339, 128 S.Ct. 1801, 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 instate 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-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. See 553 U.S. at 355-57, 128 S.Ct. 1801.

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.

1 . The district court also enjoined Maine from enforcing parts of section 1711-E implementing section 1171-E(2-A). See Rowe, 532 F.Supp.2d at 183.

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.

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.

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.

6 . "Marketing” includes "[ajdvertising, 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.” Id. § 1711-E(1)(F-1).

" '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.” Id.

7 . This circuit upheld New Hampshire’s statute, which categorically prohibits certain entities, including plaintiffs, from licensing, transferring, using, or selling any prescriberidentifying data for a commercial purpose. N.H.Rev.Stat. Ann. § 318:47 — f; Ayotte, 550 F.3d at 47. 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, 631 F.Supp.2d 434, 443-44 (D.Vt.2009).

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).

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).

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. Id.% 1711-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); id. § 8704(1)(A).

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.

13 . Plaintiffs’ overbreadth argument, not addressed by the district court, consists of the bare assertion that the Maine law is over-broad 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, see 550 F.3d at 59-60, and the argument has no relevance to our alternate holding in Part III.B.

14 . Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), held that a consumer credit report made available by a reporting agency to particular subscribers received less First Amendment protection because it was "solely in the individual interest of the speaker and its specific business audience.” Id. at 762, 105 S.Ct. 2939. 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.” Id. at 762 n. 8, 105 S.Ct. 2939.

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, 245 F.3d 809, 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.

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. Hill, 530 U.S. at 717, 120 S.Ct. 2480.

16 . 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 prescriberidentifying data and to use it to facilitate unwelcome detailing practices.

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.

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, 552 U.S. 442, 450-51, 128 S.Ct. 1184, 170 L.Ed.2d 151 (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 Ayotte, 550 F.3d at 63.

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, — U.S.—, 130 S.Ct. 1324, 1339 & n. 7, 176 L.Ed.2d 79 (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 ex-traterritorially; it is how to interpret section 1711-E(2-A)’s intended scope. Cf. id. at 1339.

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).

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 borders. 550 F.3d at 63-64.

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, 174 Cal. 1, 162 P. 93 (1916); see also Sexton v. Ryder Truck Rental, Inc., 413 Mich. 406, 320 N.W.2d 843, 854 (1982); 73 Am.Jur.2d Statutes § 250 (2010). Numerous types of state statutes have extraterritorial effect. See, e.g., State v. Flores, 218 Ariz. 407, 188 P.3d 706, 710 (Ct.App.2008) (criminal laws); Boca Petroco, Inc. v. Petroleum Realty II, LLC, 285 Ga. 487, 678 S.E.2d 330, 333-34 (2009) (lis pendens statutes); Heath Consultants, Inc. v. Precision Instruments, Inc., 247 , 527 N.W.2d 596, 607 (1995) (antitrust law).

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, 449 U.S. 302, 308, 101 S.Ct. 633, 66 L.Ed.2d 521 (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, 504 U.S. 298, 312-13, 112 S.Ct. 1904, 119 L.Ed.2d 91 (1992).

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 Davis, 553 U.S. at 337-38, 128 S.Ct. 1801; Granholm v. Heald, 544 U.S. 460, 472, 125 S.Ct. 1885, 161 L.Ed.2d 796 (2005).

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.

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, 553 U.S. 328, 128 S.Ct. 1801, 170 L.Ed.2d 685; United Haulers, 550 U.S. 330, 127 S.Ct. 1786, 167 L.Ed.2d 655; Am. Trucking Ass'ns, Inc. v. Mich. Pub. Serv. Comm’n, 545 U.S. 429, 125 S.Ct. 2419, 162 L.Ed.2d 407 (2005); Granholm, 544 U.S. 460, 125 S.Ct. 1885, 161 L.Ed.2d 796, 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, 538 U.S. 644, 669, 123 S.Ct. 1855, 155 L.Ed.2d 889 (2003) (citing Healy, 491 U.S. 324, 109 S.Ct. 2491, 105 L.Ed.2d 275; Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 55 S.Ct. 497, 79 L.Ed. 1032 (1935)). We nonetheless assume this doctrine remains viable. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S.Ct. 275, 139 L.Ed.2d 199 (1997). Even so, plaintiffs' challenge fails.

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., 462 F.3d 249, 262-63 (3d Cir.2006); Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 81-83 (1st Cir.2001), aff'd sub nom. Pharm. Research & Mfrs. of Am., 538 U.S. 644, 123 S.Ct. 1855, 155 L.Ed.2d 889, 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, 336 F.3d 545, 547-50 (7th Cir.2003); see also J. Goldsmith & A. Sykes, The Internet and the Dormant Commerce Clause, 110 Yale LJ. 785, 789-90 &n.26 (2001).

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, 517 U.S. 559, 571, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) (internal citation omitted); see also Healy, 491 U.S. at 336-37, 109 S.Ct. 2491.

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, 553 U.S. 16, 24-25, 128 S.Ct. 1498, 170 L.Ed.2d 404 (2008), to the enforcement of criminal and tort law, see, e.g., Young v. Masci, 289 U.S. 253, 259, 53 S.Ct. 599, 77 L.Ed. 1158 (1933); Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911) (Holmes, J.); see also Bigelow v. Virginia, 421 U.S. 809, 834-35 & 834 n. 2, 95 S.Ct. 2222, 44 L.Ed.2d 600 (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 courts.” 457 U.S. at 643, 102 S.Ct. 2629 (plurality opinion). But the expansion of personal jurisdiction beyond the rigid geographical rules of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1877), to the nexus-oriented approach of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), only reinforces the fact that states’ jurisdiction — whether legislative or adjudicatoiy-is not categorically limited to their territory in any context.

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 Healy, 491 U.S. at 340-41, 109 S.Ct. 2491; Baldwin, 294 U.S. at 522, 55 S.Ct. 497, or because of their protectionist effects for consumers, BrownForman, 476 U.S. at 580, 106 S.Ct. 2080. 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. See 451 U.S. at 641, 101 S.Ct. 2061 (plurality opinion). The majority only invalidated the law as an excessive burden on interstate commerce under Pike. Id. at 644, 101 S.Ct. 2061.

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. See 294 U.S. at 519, 55 S.Ct. 497. 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, id. at 524, 55 S.Ct. 497, and the asserted purpose of protecting local farmers’ economic welfare was impermissibly protectionist, id. at 523, 55 S.Ct. 497.

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 interest. 457 U.S. at 642, 102 S.Ct. 2629 (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 Healy, 491 U.S. at 326-27, 109 S.Ct. 2491; Brown-Forman, 476 U.S. at 576, 106 S.Ct. 2080. The only in-state interest served by such laws, the Court suggested, was to illegitimately protect local interests. See Healy, 491 U.S. at 340-41, 109 S.Ct. 2491; Brown-Forman, 476 U.S. at 580, 106 S.Ct. 2080.

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 protecting.” 481 U.S. at 93, 107 S.Ct. 1637.

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 593 F.3d 660, 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 id. at 663-65, 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 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.