April 26, 2018
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Supreme Court upholds prescription drug data-mining

BDN staff and wire reports

In a 6-3 vote, the U.S. Supreme Court on Wednesday struck down a law in Vermont that prohibited drug companies from obtaining doctors’ prescribing records from pharmacies and using the information to refine and target their marketing strategies.

Similar laws in Maine and New Hampshire could be affected by the high court’s decision.

The justices found the Vermont law unconstitutional because it burdened drug companies’ freedom of speech.

“Speech in aid of pharmaceutical marketing … is a form of expression protected by the Free Speech Clause of the First Amendment,” wrote Justice Anthony Kennedy in the 25-page decision. The ruling notes that prescribing information is made available to other users, including researchers, law enforcement and government agencies.

Dissenting justices Stephen Breyer, Ruth Bader Ginsberg and Elena Kagan wrote that Vermont’s law was justified by “… the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs and protect the privacy of prescribing physicians.”

The law in Vermont, along with similar laws in New Hampshire and Maine, were passed to curb hard-sell practices that critics say encourage doctors to prescribe new, high-priced drugs for patients who could be treated with less expensive generic drugs. The laws have been challenged in all three states by “data-mining” companies that sell the prescribing information to drug companies.

Anti-data-mining laws in Maine and New Hampshire were upheld in a 1st U.S. Circuit Court of Appeals ruling last August, but could be affected by the Supreme Court decision.

Maine state Rep. Sharon Treat, D-Hallowell, supported the passage of Maine’s law and also heads up the National Legislative Association on Prescription Drug Prices, a nonpartisan organization of state legislators. On Wednesday, Treat, a lawyer, said Maine’s law is less restrictive than Vermont’s and may withstand the high court judgment.

“It is premature to say what this means for the Maine law,” she said. “We’ll have to see.”

Treat said the Supreme Court ruling is noteworthy for its use of First Amendment rights to  defend data-mining.

“It’s not speech, it’s data used to profile the physicians that these companies want to speak to,” Treat said. “This really is a sweeping decision … that may have implications beyond the issue of medical information privacy. “

Though prescribing data do not include individual patient identification, the court’s decision leaves room for prescribing records to be protected by the application of state and federal laws that protect patient privacy.

BDN writer Meg Haskell and The Associated Press contributed to this report.

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