New Hampshire ban on sale of prescribing data upheld

A federal appeals court ruling that upheld New Hampshire's ban on commercial use of prescribing data could clear the way for other states to pursue legislation restricting drugmakers' access to information they use to tailor marketing pitches to doctors.

The 1st U.S. Circuit Court of Appeals in November found that the 2006 New Hampshire law did not violate the First Amendment, overturning a lower court ruling. The court's three-judge panel rejected the plaintiffs' argument that the law prohibited free flow of information.

The judges said the law regulates conduct, not speech, and the state had presented evidence to show that prescribing data was used to fine-tune drug reps' marketing pitches for higher-cost, brand-name drugs that were not always more efficacious.

"While the plaintiffs lip-synch the mantra of promoting the free flow of information, the lyrics do not fit the tune," wrote U.S. Court of Appeals Judge Bruce M. Selya in his opinion.

The plaintiffs in the case, data analysis firms IMS Health Inc. and Verispan LLC, now part of Surveillance Data Inc., said in a statement they are reviewing the decision and evaluating potential next steps.

They can ask for the 1st U.S. Circuit's full bench to review the three-judge panel's decision. The plaintiffs also could appeal to the U.S. Supreme Court.

The Pharmaceutical Research and Manufacturers of America was disappointed by the decision. "This ruling will make it more difficult for doctors -- and through them, patients -- to obtain the most current information about medicines," PhRMA Vice President Ken Johnson said in a statement.

Proponents of restricting drugmakers' access to prescribing data greeted the court ruling as a green light for more aggressive legislation.

"You will see states moving ahead, based on this," said Sharon Anglin Treat, a Maine state representative and executive director of the National Legislative Assn. on Prescription Drug Prices, a coalition of legislators that advocates legislation targeting pharmaceutical marketing.

The decision of the appeals court "cleared the way for states to do a very strong piece of legislation that's basically a ban on the use of data from prescribers, without the complications of opt-in or opt-out," Treat said.

At least 15 states over the past two years considered bills to restrict access to prescribing data, but some of the bills were withdrawn after the unfavorable lower court ruling in New Hampshire, Treat said.

Medicine split on handling data

The New Hampshire Medical Society strongly backed the state's ban on commercial use of prescribing data and was party to an amicus brief arguing that the law be upheld.

"The law was regulating conduct, not speech, and the type of conduct we're talking about is the capacity for drug salespeople to be able to tailor their sales pitches to physicians, knowing the behavior of how they prescribe different medications," said Marc Sadowsky, MD, a Nashua, N.H., psychiatrist and former president of the state society. "We're looking forward to seeing how things might work in New Hampshire with that weapon taken away from them."

Vermont and Maine are the only other states with laws similar to New Hampshire's. Neither adopted a complete ban on the sale of prescribing data, however. In Vermont, physicians can opt-in to let drugmakers access their prescribing records. In Maine, doctors can opt-out.

In 2006, the Vermont Medical Society adopted a resolution saying "the use of physician prescription information by sales representatives is an intrusion into the way physicians practice medicine" and that commercial use of such data should be restricted. The society supports the Vermont law.

The Maine Medical Assn., meanwhile, opposed the opt-out law passed there. The organization says the AMA's Physician Data Restriction Program, which allows doctors to keep prescribing data out of the hands of drug reps, addresses the problem.

Jeremy A. Lazarus, MD, speaker of the AMA House of Delegates, said in a statement that the Association's voluntary opt-out program "eliminates the need for restrictive legislative action."

More than 18,600 doctors have enrolled in the data-restriction program. Drugmakers still have access to prescribing data, which are used for safety and marketing purposes, but the information is not provided to detailers or their immediate supervisors.