Healthy Skepticism Library item: 9863

Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.

Publication type: news

McCormack K.
Judge strikes down N.H. prescription information law
The Boston Globe 2007 Apr 30
http://www.boston.com/news/local/connecticut/articles/2007/04/30/judge_strikes_down_nh_prescription_information_law/

Full text:

CONCORD, N.H. —A federal judge on Monday struck down New Hampshire’s first-in-the-nation law that makes doctors’ prescription-writing habits confidential, saying it violates the First Amendment.

Drug company sales representatives use the information to target particular doctors and tailor their sales pitches to each one, a practice known as “detailing.”

Signed on June 30, 2006, by Gov. John Lynch, the law took effect immediately. It made New Hampshire the first state to try to block pharmaceutical companies’ hard-sell pitches by restricting access to data that identifies doctors and other prescribers. Information containing prescribers’ zip codes, location and medical specialties is allowed. The law does not prohibit information from being used for care management, clinical trials and education.

Pharmaceutical company salespeople prize doctors’ information because it profiles prescribing habits — they can learn which doctors favor brand names or generics, and who is more willing to prescribe new drugs — and steer their strategies accordingly.

Less than a month after the law took effect, IMS Health Inc., headquartered in Norwalk, Conn., and Verispan LLC, headquartered in Yardley, Pa., filed a complaint in U.S. District Court asking a judge to declare it unconstitutional.

The companies, which collect, analyze and sell medical data, said the law, which bans the sale, use and distribution of certain prescription information, goes too far. They allege it violates free speech rights, endangers public health and impedes research.

U.S. District Judge Paul Barbadoro agreed in his 54-page ruling. He said the law “attempts to address important public policy concerns,” but when states “adopt speech restrictions as their method, courts must subject their efforts to closer scrutiny.”

Barbadoro wrote the law “cannot be enforced to the extent that it purports to restrict the transfer or use of prescriber-identifiable data.”

“We are very pleased with the judge’s decision, and there are no losers in the outcome of this trial,” said Robert Steinfeld, IMS senior vice president and general counsel. “Patients will benefit from a more transparent, safer and more competitive healthcare system as a result of this ruling.”

AARP, the New Hampshire Medical Society, and the Department of Health and Human Services supported the law. Supporters said the ban would protect doctor-patient privacy and prevent salespeople from unduly influencing prescription choices.

“We’re reviewing the decision and we’ll decide whether to appeal,” New Hampshire Attorney General Kelly Ayotte said Monday night.

Pharmaceutical companies, drug store chains and medical data companies opposed the ban. IMS and Verispan had predicted the law would have a chilling effect on research and development, even though it focuses on commercial purposes like advertising, marketing and sales.

“Patient privacy was never an issue in this litigation, as the information we collect does not identify individual patients,” Verispan Vice President Jody Fisher said.

States that have considered similar bills include Arizona, Illinois, Kansas, Maine, Nevada, New York, Massachusetts, Rhode Island, Vermont, Washington, West Virginia and Texas. A federal bill was proposed last year but died in committee.