Court questions limits on use of prescription data

Posted April 26, 2011, at 6:01 p.m.

WASHINGTON — The Supreme Court cast doubt Tuesday on efforts by states to limit drug manufacturers’ use of information about the prescription drugs that doctors like to prescribe.

The court took up a dispute between the state of Vermont and companies that sell doctors’ prescribing information to pharmaceutical companies, though without patient names. The drug makers use the data to tailor their pitch to individual doctors.

The Vermont law had prevented the sale of information about individual doctors’ prescribing records without the doctors’ permission.

But several justices said the so-called data mining law raised troubling constitutional concerns because it appeared to make it harder for brand-name drug makers to state their case, while placing no similar restrictions on the state, insurance companies and others who favor the increased use of cheaper generic medicines.

Chief Justice John Roberts said the Vermont law seemed to be “censoring” what doctors could hear. Justice Ruth Bader Ginsburg said the court has ruled in the past that governments “can’t lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better.”

A federal appeals court struck down the Vermont law as a restriction on commercial free speech that violates the First Amendment, but another appeals court rejected the constitutional challenge and upheld similar laws in Maine and New Hampshire.

The case also is being closely watched by consumer groups that fear a broad ruling could call into question federal and state consumer privacy protections. The Obama administration and 35 states urged the court to uphold Vermont’s statute. On the other side, The Associated Press joined other media companies and press freedom groups in urging the court to strike down the Vermont law and extend broad constitutional protection to the gathering and use of computerized data.

Pharmacies are required by state and federal law to collect information about prescriptions. The pharmacies sell the information to companies that, in turn, sell it to the drug companies. The data reveal what drugs doctors prescribe, including changes in brand-name drugs they choose for their patients and their use of generics. The information is extremely valuable to the drug companies, which spend a reported $8 billion a year marketing their products to doctors.

Backers of the laws generally believe that drug prices are too high and that one reason is the money drug makers spend to market and advertise their products. The laws’ supporters say that by preventing the sale of the information, they help protect medical privacy, control health care costs by promoting generic drugs and improve public health.

Bridget Asay, Vermont’s lawyer, said the drug companies do not have a right to the information without the consent of the doctor. Justice Antonin Scalia was among several justices who said doctors can simply choose not to meet with the drug companies’ representatives if they want to avoid the sales pitches.

Justice Department lawyer Edwin Kneedler said the restrictions on data mining are in keeping with laws that prohibit the commercial exploitation of driver license information. He also said the law aims only at the one-on-one pitches that the sales reps make to doctors using information about that individual doctor’s prescribing trends.

Widespread television and other media advertisements are unaffected, Kneedler said.

Justice Anthony Kennedy jumped in at that point. “What you’re saying is the state can prohibit the most efficient form of speech.”

Three companies that sell the information they gather — IMS Health, SDI and Source Healthcare Analytics — challenged the Vermont law.

The drug industry’s trade group, the Pharmaceutical Research and Manufacturers of America, also joined the lawsuit because the Vermont law also prohibits drug companies from using the information for sales and marketing purposes.

The lawsuit says the information about doctors’ prescribing patterns is important in helping spot trends, keeping tabs on the safety of new medications and studying treatment outcomes.

Thomas Goldstein, representing the companies, said one remarkable feature of the case is that the Vermont law is not focused on false or deceptive advertising. The Food and Drug Administration regulates what claims drug makers may make, Goldstein said.

“This is truthful and accurate speech,” he said.

A decision is expected by late June.

The case is Sorrell v. IMS Health, 10-779.

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