New Hampshire ban on sale of prescribing data is overruled
■ Despite the federal court ruling, Maine and Vermont are close to enacting laws that let doctors choose whether to share their data with drug reps.
By Kevin B. O’Reilly — Posted May 28, 2007
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A federal judge late last month ruled that a New Hampshire law banning the sale of physicians' prescribing data to drugmakers for use in detailing is an unconstitutional infringement on commercial free speech rights.
U.S. District Judge Paul Barbadoro wrote in his ruling that the law "restricts speech by preventing pharmaceutical companies from using prescriber-identifiable information both to identify a specific audience for their marketing efforts and to refine their marketing messages."
Barbadoro found that physicians do not have a right to keep their prescribing data secret. He said there was little evidence presented to show that drug reps use the information to harass doctors. Also, the New Hampshire law does not distinguish between truthful and misleading detailing and attempted to blunt all drug reps' speech by restricting data sharing, he said.
The ruling puzzled one physician who has written about the issue.
"It seems like a very strange construction of the First Amendment to consider the sale of data about a doctor's prescribing as a kind of free speech," said Jerry Avorn, MD, author of Powerful Medicine: The Benefits, Risks, and Costs of Prescription Drugs and a professor of medicine at Harvard Medical School.
Eugene Volokh, a law professor at the University of California, Los Angeles, whose work was cited in the court's decision, said data might not seem to be speech, but it ultimately contributes to expression. "Data is a fancy way of saying information, and the communication of information is what speech is all about," he said.
New Hampshire's Attorney General Kelly Ayotte will appeal the ruling in IMS Health Inc. v. Ayotte to the 1st U.S. Circuit Court of Appeals. The New Hampshire Medical Society strongly supported the statute and supports efforts to appeal the ruling.
"We still obviously believe in the law," said Marc Sadowsky, MD, the society's immediate past president.
Sean M. Flynn, adjunct law professor and associate director of the Program on Information Justice and Intellectual Property at American University, filed an amicus brief on behalf of the New Hampshire Medical Society and other groups.
"The district court was wrong on several levels," Flynn said. "It should not have provided First Amendment scrutiny to this law; it should have looked at it like any other economic regulation. And the court should have found a legitimate state interest in protecting doctors' privacy."
Others move ahead
Sixteen states this year have considered legislation similar to New Hampshire's, but only a few have made it out of committee. An effort in Nevada garnered the support of the state medical society but lost 12-9 in an April Senate floor vote. Maine and Vermont, however, appear to be close to taking action just short of a total ban.
Earlier this month, a Maine joint House-Senate committee voted 12-1 to recommend passage of a bill that would give physicians and other prescribers the ability to opt out of having their data shared with detailers. The Maine Medical Assn. opposes the bill, but executive director Gordon H. Smith said it is likely to clear both chambers. He would be "stunned," he said, if Democratic Gov. John Baldacci did not sign it into law.
The AMA, which is among those that license data, offered to send each physician in Maine a certified letter informing them of the Association's 10-month-old Physician Data Restriction Program and how to enroll. But state legislators wanted to cover all prescribers, not just physicians. Lawmakers also wanted to impose harsh financial penalties on drugmakers that violate the law.
Meanwhile, in Vermont, Democratic Rep. Harry Chen, MD, helped lead the effort to pass a bill in which physicians applying for licensure would have to opt in before any of their prescribing data could be shared with detailers. The Vermont Medical Society strongly supports the legislation, which the Senate passed 29-1 in April and the House passed 89-44 in early May. Days later, a House-Senate conference worked out differences in the legislation, but at AMNews press time in mid-May the bill had not yet been sent to the governor.
Dr. Chen said that in response to the New Hampshire ruling, legislators worked to show in their findings how physicians are sometimes harassed by detailers with up-to-date prescribing data. Republican Gov. Jim Douglas has not publicly taken a position on the measure, and has five days to decide whether to veto once it reaches his desk.
A spokesman for data-mining firm IMS Health, the lead plaintiff in the New Hampshire case, said the company will challenge any law that "undermines health care information transparency." UCLA's Volokh said even the Maine and Vermont bills could face First Amendment objections.
"I think this kind of opt-out option won't work," he said. "What if there were a database of people who decided they didn't want to be written about in newspapers?"
The AMA said it remains committed to raising awareness of its own opt-out program. Since February, the Association has placed ads in AMA publications and a handful of non-AMA journals. Through early May, about 7,500 physicians had enrolled in the AMA's data restriction program.
"The AMA is trying to act responsibly in response to what our members and to what physicians tell us," said Jeremy Lazarus, MD, vice speaker of the AMA House of Delegates. "We think the [data restriction program] is the responsible way to address doctors' concerns, and it gives physicians a choice."
The AMA does not disclose how much of its $44.5 million in database products revenue is generated by licensing AMA Physician Masterfile information to data-mining firms.