Supreme Court to tackle access to prescription data

The high court will decide whether Vermont can ban selling the information to drug companies.

By Alicia Gallegos — Posted Feb. 21, 2011

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Should physicians' prescription data be off-limits to drug companies?

It's a question legislators have wrestled with for years. Maine and New Hampshire have answered by banning the practice. The U.S. Supreme Court will examine the issue and decide whether Vermont can bar selling prescription information to drug companies -- or whether the ban violates free speech.

"In determining what is commercial speech, this is an important" case, said Ruthann Robson, a law professor at City University of New York School of Law.

IMS Health Inc. v. William Sorrell stems from a data ban passed by the Vermont Legislature in 2007. The law says companies can't sell prescription information for marketing purposes, and drug companies can't use it unless prescribing doctors consent.

IMS, a consulting company that provides market research to the pharmaceutical and health care industries, argued that the law hindered its First Amendment rights. The company, joined by Pharmaceutical Research and Manufacturers of America and others, sued Vermont Attorney General William Sorrell over the law's enforcement.

A district court sided with the state. But in 2009, the 2nd U.S. Circuit Court of Appeals overturned the decision on constitutional grounds.

The appellate ruling conflicted with rulings in Maine and New Hampshire that upheld similar laws in those states. In January 2011, the Supreme Court agreed to review the Vermont case. Justices will hear arguments this year.

The case will examine whether computer data are considered "speech" and, if so, what type of protection is entitled. Another aspect is whether the government has valid reasons to restrict the data-selling practice.

The Vermont Medical Society said the state has reasons for keeping the data from drug reps, including protecting physician privacy and lowering drug costs.

Drugmakers use prescribing information to tailor marketing messages and influence doctors' prescribing practices, said Paul Harrington, the medical society's executive vice president. Those efforts often are directed toward increasing sales of brand drugs, he said.

Similar legislation concerning prescription data access has been defeated in states such as Arizona, Iowa and Nevada. Although medical associations in New Hampshire and Vermont strongly supported such laws, the Maine Medical Assn. opposed its state's ban.

Physicians can opt out

Andrew MacLean, deputy executive vice president and general counsel for the MMA, said the American Medical Association's Physician Data Restriction Program already addresses prescription data privacy. The program, which started in 2006, allows doctors to elect to keep prescribing data from drug reps.

"In an era where transparency is the norm, I think a relatively small portion of physicians are concerned about this," he said.

Since the Maine law took effect, MacLean said a small fraction of the 3,000 practicing physicians in the state have opted out of having their data accessed by contacting the Maine Health Data Organization.

Physician enrollment in the AMA's PDRP has increased from 18,600 in 2008 to 27,061 in 2011. The opt-out program "offers physicians choice and control in designating their prescribing data as off-limits to drug salespeople, while preserving this information for use in beneficial public health programs," said Jeremy A. Lazarus, MD, speaker of the AMA House of Delegates. "The very positive reaction to the PDRP demonstrates the program is a viable alternative to state legislative bans that could restrict prescription data for use in quality improvement efforts."

The AMA licenses Physician Masterfile information such as names and specialties on about 1 million doctors to firms such as IMS. These companies also purchase prescribing information from pharmacies, then link prescribers to prescriptions and resell the data to drugmakers and others for marketing and research purposes.

The New Hampshire Medical Society has noticed a drop in doctor complaints on data being accessed by drug reps since a ban took effect, said Janet Monahan, the society's deputy executive vice president.

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