A state law mandating the confidentiality of physicians' prescribing
information was upheld by a federal court in November.
The 1st Circuit Court of Appeals in Boston overturned a lower federal court
ruling and let stand a New Hampshire law that blocks the use of
physician-identified prescribing information and prescribing patterns for
drug-marketing purposes. The state law would have taken effect in July 2006
had it not been challenged.
The decision set a legal precedent in a series of ongoing lawsuits by those
who mine such data and by the pharmaceutical industry, both of whom did not
want legal restrictions imposed on these marketing practices.
A similar law had been overturned by a federal court in Maine in December
2007, while one in Vermont still faces a federal court challenge, although
that suit falls under a different federal appeals court.
The New Hampshire law is seen as the most wide-ranging of these three state
laws addressing this issue because its language encompasses more prescribing
data and explicitly bars more marketing uses. It was the first state law to
specifically prohibit the sale or transfer of information identifying doctors
for commercial purposes.
The New Hampshire suit was brought by data-mining firms IMS Health and
Verispan, the latter of which was subsequently bought by the large data-miner
SDI. These companies purchase prescribing information from pharmacy chains and
the companies that manage drug benefits for employers and then sell it to drug
The companies argued that the law infringed on their free-speech
But the intent of the New Hampshire law, officials pointed out, was to cut
down on the state's health care costs by eliminating a tool used by
pharmaceutical sales representatives to promote brand-name drugs, according to
state Rep. Cindy Rosenwald (D), who sponsored her state's legislation.
Rosenwald and other proponents of the law contended that purchasing the
data that described the prescribing patterns of individual physicians allowed
sales forces to identify which doctors might use their products and be more
receptive to sales pitches. Additionally, the information could be used to try
to change the minds of doctors who do not write many prescriptions for their
In a jointly issued press statement, IMS Health and SDI said they were"
disappointed" with the appeals court decision and were"
evaluating potential next steps."
The American College of Physicians and advocacy groups, such as the
National Physicians Alliance, have urged the AMA to prohibit the release or
licensing of an individual physician's professional information kept in the
AMA's database of about 900,000 member and nonmember physicians. Drug
companies pair that information with physician-specific prescribing data to
tailor sales pitches to individual clinicians.
"This is a groundbreaking and important decision," said Maine
state Rep. Sharon Treat (D), who also is executive director of the National
Legislative Association on Prescription Drug Prices. The association supported
the New Hampshire law and drafted a model bill for other states.
She noted that 12 states had introduced bills in 2008 that would regulate
the marketing use of physician prescribing information in ways similar to
those in the New Hampshire law. The same number of states had similar
legislation introduced in their legislatures in 2007.
"Largely because of the pending litigation challenging the New
Hampshire, Maine, and Vermont laws, these [other states'] bills were withdrawn
or did not pass," Treat said in a written statement. "Now that
legislators have been given the green light in this unanimous and clear
victory, we can expect that these and other states will consider resubmitting
The appeals court decision inIMS v. Ayotteis posted at<www.ca1.uscourts.gov/pdf.opinions/07-1945P-01A.pdf>.▪