The groundbreaking legal spat pitting Vermont against drug makers and data providers is being argued in a federal court in New York and, so far, the toughest questions have been directed at Vermont's Assistant Attorney General, according toThe Pink Sheet's Brenda Sandburg.
You may recall that Vermont passed a law restricting the sale of prescription drug info that identifies prescribers and patients for commercial marketing purposes. The effort is being challenged by IMS Health, Wolters Kluwer Health and SDI, with support from PhRMA, which contend the law hurts public access to healthcare info (back story).
During oral arguments, a lawyer for IMS contended that Vermont's law is an "attempt to correct the balance of ideas" and "to shape the message of pharmaceutical companies."
Vermont's Bridget Asay was later asked by the judges if the state considered less restrictive measures, if there was precedent for regulating the flow of info to accomplish a goal and if the desire to level the marketplace of ideas is a constitutional basis for legislation, The Pink Sheet writes.
Judge John Koeltl wanted to know whether one purpose of the law is to level the playing field of ideas. If marketing has been overwhelmingly one-sided and that drives up medical costs "is that a constitutional basis for legislation?" he asked. "How can it be even-handed if the purpose of the legislation is to level the marketplace of ideas?"
Asay said the legislation is even-handed because it restricted use of data as a marketing tool by all drug makers. Asked if Vermont considered alternatives, such as counter-detailing, Asay said: "The test is not whether Vermont considered less restrictions but whether this particular marketing tool has influence on prescribing. The alternatives suggested don't get at that problem of undue influence on prescribers."
You can read more about the stated arguments in The Pink Sheet Daily (which requires a subscription. And full disclosure, Ed Silverman is an editor at The Pink Sheet).