In a move that will likely embolden other states, a federal appeals court upheld a first-in-the-nation law that prohibits prescription data identifying patients or prescribers from being used for marketing purposes. Pharma challenged the law, citing a First Amendment right to track prescription records, while state officials argued the law protected doctor-patient relationships, promoted patient safety and contained health care costs.
Drugmakers want this data so they can learn which docs are high prescribers and figure out who to target for the hard sell. Two research firms, also known as data miners, IMS Health and Verispan, challenged the law and called it unconstitutional. They received backing not only from industry, but also free-speech advocates. Consumer and patient groups lined up behind the state, citing patient privacy and a need to lower health costs. Last year, a federal judge agreed with IMS and Verispan (back story).
The three judge panel wrote: "In our view, the portions of the law at issue here regulate conduct, not speech. Unlike stereotypical commercial speech, new information is not filtered into the marketplace with the possibility of stimulating better informed consumer choices (after all, physicians already know their own prescribing histories) and the societal benefits flowing from the prohibited transactions pale in comparison to the negative externalities produced. This unusual combination of features removes the challenged portions of the statute from the proscriptions of the First Amendment.
"There is a second basis for our decision. Even if the Prescription Information Law amounts to a regulation of protected speech - a proposition with which we disagree - it passes constitutional muster. In combating this novel threat to the costeffective delivery of health care, New Hampshire has acted with as much forethought and precision as the circumstances permit and the Constitution demands," the judges wrote in their 148-page ruling.
"This is an important decision for data privacy advocates,” according to Sean Fiil-Flynn, a lawyer for consumer groups that filed friend-of-the-court briefs and associate director of the Program and Information Justice and IP at Washington College of Law, American University. The court "refused to apply the First Amendment here, where 'information itself has become a commodity' and explained that applying the First Amendment to such trade in prescription data ’stretches the fabric of the First Amendment beyond any rational measure.’”
In a joint statement, IMS and SDI, which owns Verispan, said: "We are disappointed with the First Circuit Court of Appeals decision. Two federal courts previously have examined the issue and validated the view that the First Amendment protects the dissemination of prescriber-identifiable data, which we believe is vital to efforts to improve the quality, efficiency and safety of our healthcare system. We are currently reviewing the decision and evaluating potential next steps.”
Hat tip to PostScript