Court upholds Vermont law on prescribing data privacy

Health data firms' argument that selling prescribing data is protected commercial speech gets defeated.

By Kevin B. O’Reilly — Posted May 11, 2009

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A federal court in April upheld a 2007 Vermont law that lets physicians choose whether to allow their prescribing data to be sold for use in pharmaceutical marketing.

The decision came on the heels of a November 2008 court ruling that upheld New Hampshire's ban on selling prescribers' information for commercial uses. This reversed a district court ruling that the ban violated First Amendment protections for commercial speech.

Pharmaceutical sales representatives, also called detailers, use prescribing data to tailor their discussions with physicians and other prescribers. In his opinion upholding the Vermont law, U.S. District Judge J. Garvan Murtha wrote that the state had demonstrated that detailing "encourages doctors to prescribe newer, more expensive and potentially more dangerous drugs instead of adhering to evidence-based treatment guidelines."

The plaintiffs in the case -- medical data firms IMS Health, SDI and Wolters Kluwer Health -- said in a statement that they are reviewing their legal options. They already have petitioned the U.S. Supreme Court to hear their arguments in the New Hampshire case, IMS v. Ayotte.

"The key to improving health care quality, and reducing costs and variability in treatment, is access to more information -- not less," the companies' statement said.

Maine is the only other state with a prescribing data law. It allows physicians to opt out of having their prescribing data sold to health information firms and drugmakers. The Maine Medical Assn. opposed the law, while the medical societies in New Hampshire and Vermont supported their states' prescribing data measures. Lawmakers in Connecticut and Massachusetts are considering similar proposals.

The American Medical Association opposes state legislation that would ban the sale of prescribing data for commercial use. The AMA has said profits from such sales help subsidize the use of data in the development of clinical practice guidelines, prescription monitoring programs, safety studies and disease management programs.

Physicians can keep their data away from drug reps and their direct supervisors by enrolling in the AMA's Physician Data Restriction Program (link). About 22,000 doctors have signed up since the program was introduced in 2006.

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