State laws in New Hampshire and Vermont restricting the mining of data on
physicians' prescribing patterns for use in marketing were allowed to stand by
both the U.S. Supreme Court and a federal appeals court in June.
At issue are the practices of "data-mining" firms, which gather
electronic information on the medications physicians prescribe for their
patients and then sell that information to pharmaceutical companies to use in
marketing their products to physicians. Three states have passed legislation
largely banning such practices.
The court decisions allowing two of those laws to continue after appeals
were filed to halt them were victories for physician and patient advocates,
two groups that have opposed the practice of analyzing physician prescribing
information for use in sales pitches and direct marketing.
Opponents of data mining maintain that the practice has driven up health
care costs as more expensive, brand-name drugs are prescribed and has eroded
the primacy of the physician-patient relationship by the intrusion of product
The New Hampshire law, which was originally passed in 2006, remains in
effect after the U.S. Supreme Court on June 29 declined to review the case,
IMS Health and Verispan v. Ayotte, which challenged the
constitutionality of that law.
That ruling was preceded the week before by the 2nd U.S. Circuit Court of
Appeals' announcement that it was declining to stay a similar Vermont law from
going into effect on July 1. The court still plans to consider the merits of
the case, IMS Health Inc. v. Sorrell, and will hear oral arguments
later this year. The Vermont case was brought by companies that collect
prescribing information. A U.S. district court decision in April upheld the
Vermont law, but the companies appealed that ruling (Psychiataric
News, June 5).
The third state law banning the practice, enacted in Maine, was previously
struck down by a district court but is on appeal to the same circuit court
that upheld the constitutionality of the New Hampshire law.
Patient and physician advocates, including the National Legislative
Association on Prescription Drug Prices (NLARx), hailed the court decisions as
reinforcing the role of state legislatures in protecting patients and reining
in soaring prescription-drug costs.
"Now that the U.S. Supreme Court has refused to review the decision
upholding New Hampshire's law protecting prescriber data from marketing uses,
there should be no question that other states can and should move forward to
enact similar laws," said Sharon Treat, executive director of NLARx, in
a written statement. "In the absence of any federal protections, states
have a responsibility to limit this harmful marketing tactic...."
The plaintiffs in the Vermont and New Hampshire cases downplayed both court
decisions on the basis that such requests to stay pending laws are rarely
granted. The marketing companies have opposed the laws as unconstitutional
restrictions on protected speech and attempts to interfere with interstate
commerce. Such marketing is needed, they maintained, to highlight information
for physicians about more effective medications that can better help
Information on the case, IMS Health and Verispan v. Ayotte,
is posted at<www.ca1.uscourts.gov/pdf.opinions/07-1945P-01A.pdf>.
Information on IMS Health, Inc. v. Sorrell is posted at<www.ropesgray.com/files/upload/052209_HC_Alert_VermontOpinion.pdf>.▪