Drug Marketers Can't Use Identifiable Physician Data, Court Rules

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 companies.

The companies argued that the law infringed on their free-speech rights.

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 products.

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 this legislation.”

The appeals court decision inIMS v. Ayotteis posted at<www.ca1.uscourts.gov/pdf.opinions/07-1945P-01A.pdf>.▪