Healthy Skepticism Library item: 15886

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Publication type: news

Data-Mining Firms Seek To Block Vermont Rx Data Marketing Law
iHealthBeat 2009 Jun 24
http://www.ihealthbeat.org/Articles/2009/6/24/DataMining-Firms-Seek-To-Block-Vermont-Rx-Data-Marketing-Law.aspx

Full text:

On Tuesday, an attorney for three prescription data-mining firms asked an appeals court to block the implementation of a Vermont law scheduled to take effect on July 1 that would restrict their activity, the AP/Washington Post reports.

The data-mining companies gather electronic information about the drugs doctors prescribe and sell that information to pharmaceutical companies (Neumeister, AP/Washington Post, 6/23).

The law, passed by the Vermont Legislature in 2007, bans all use of prescriber data for marketing purposes unless a physician allows that information to be used (iHealthBeat, 4/28).

Attorney Thomas Julin — who was representing IMS Health, Verispan and Source Healthcare Analytics — asked a three-judge panel of the 2nd U.S. Circuit Court of Appeals to block implementation of the law until the court decided whether to uphold a lower court ruling in favor of the state.

Both sides are expected to submit written arguments for the larger appeals case within two months. The court did not immediately rule on Julin’s request.

Arguments
Julin argued that the information gathered by the data-mining firms is noncommercial speech protected by the First Amendment.

However, Vermont Assistant Attorney General Bridget Asay said no substantial First Amendment issues were at stake and called the data-mining firms’ work a “covert marketing tool.”

Asay said that the Vermont Prescription Confidentiality Law regulates commercial marketing of health data to promote public health, medical privacy and to contain health care costs. She added that the state found that data marketed by the companies led to higher health care costs and contributed to inappropriate prescribing decisions.

However, Julin said that the state cannot prove that the law will reduce health care costs (AP/Washington Post, 6/23).

Other State Cases
The 1st U.S. Circuit Court of Appeals in Boston upheld a similar law in New Hampshire, ruling that commercial speech can be regulated without violating the First Amendment. The judges also found that the data-mining firms’ activity often led to higher drug costs because the pharmaceutical firms usually are trying to convince doctors to prescribe the newest and most expensive medicines.

The data-mining firms have appealed the decision on the New Hampshire law, and the Supreme Court is expected to decide by the end of the month whether to hear the case.

The Boston appeals court has put a separate case regarding a similar law in Maine on hold until the New Hampshire case is resolved (Gram, AP/Barre Montpelier Times Argus, 6/20).