U.S. Supreme Court to Consider Whether Prescription Data Mining is Protected under First Amendment
In November 2010, legalhie.com mentioned that the Court of Appeals for the Second Circuit had issued its ruling that Vermont’s drug-marketing restrictions were unconstitutional. Vermont’s law had banned the use, sale or transmission of prescriber-identifiable data without first obtaining the prescriber’s consent. Several data mining companies had brought the suit, alleging that the statute impermissibly infringed upon their freedom of speech under the First Amendment. The Second Circuit overturned the statute, holding that it was unconstitutional for Vermont to restrict speech by data miners and pharmaceutical companies without demonstrating a compelling state interest to do so. Last month, the Supreme Court agreed to consider Vermont’s appeal. The appeal will present the Court with the question on whether nonpublic data can be protected by the government, or instead whether such data should be freely available to buyers and sellers.
Vermont is not the only state that has adopted laws restricting the release of physicians’ prescription information. Maine and New Hampshire both have similar laws, and both have been challenged in federal court by market researchers and drug manufacturers. Unlike in Vermont, the Court of Appeals for the First Circuit upheld the statutes in New Hampshire and Maine, ruling that the laws restricted market research companies’ conduct- specifically the aggregation of data for drug marketing purposes- rather than their speech. These conflicting rulings reveal a split between the courts over whether regulating the sale of prescription data restrains freedom of speech. Thus, the upcoming Supreme Court’s decision could broaden the reach of the First Amendment and will largely dictate how our prescription information is bought and sold.
If the Supreme Court follows in the opinion of the Second Circuit, this may have profound implications for prescription privacy. Without restrictions on data mining, database firms and pharmaceutical intelligence companies such as IMS Health, Inc. may increasingly collect, transmit, and sell prescription data for sales purposes. Currently, IMS Health, Inc., a leading pharmaceutical consulting firm, is able to collect pharmaceutical sales and prescription data from 90% of pharmaceutical sales in the U.S. This data is then sold to pharma companies that use the data to target patients and persuade physicians to sell more of their products. This data mining is a multibillion-dollar business, and drug makers say that it is an essential research tool to help educate doctors about prescription drugs in a targeted and expedited manner. However, doctors and consumer advocates have argued that private prescription information should not be used for pharma sales purposes. Specifically, many are worried that aggressive pharma marketing could lead physicians to prescribe drugs too frequently, or to prescribe newer and more expensive drugs that are not necessarily in the patient’s best interests. A recent article by the LA Times voices additional public health and privacy concerns, noting that while prescriptions seem to be de-identified, it is relatively easy to reveal patient identities by comparing prescription data with other records.
When the Supreme Court makes its decision, it should consider all the implications of the practice of data mining, including possible exposure of sensitive physician-patient information. Although drug companies have the right to market their products, the Court must ask if they should also be guaranteed the right to access arguably privileged prescription information for their own marketing purposes, and how this will affect the protection of patient records in the future.