Prescription Project Calls Prescriber Data Lawsuits Flawed
Releases legal analysis that shows strong legal case in support of Maine and Vermont laws
Boston, MA, August 31, 2007. A Boston-based watchdog organization says the me-too lawsuits challenging prescriber data protection laws filed in Maine and Vermont district courts Wednesday by three health information organizations rest on shaky legal ground. The Prescription Project today issued a legal analysis on the original New Hampshire court case, in which a U.S. District Court Judge overturned that state’s prescriber data protection law on grounds of commercial speech rights. The Project’s legal analysis argues that for constitutional purposes, prescription data trading is not a protectable speech at the expense of consumer protection, and verifies the strength of the Vermont and Maine statutes.
“From a legal perspective, these companies have little ground to stand on, and their claim that keeping this prescriber data saleable improves health care is nothing more than a thinly-veiled effort to protect their profit line,” said Rob Restuccia, director of the Prescription Project. “Contrary to what these corporations contend, the Vermont and Maine laws do nothing to hinder important health care research or patient care,” Restuccia added.
IMS Health, Wolters Kluwer Health and Verispan LLC filed Wednesday in the U.S District Courts of Vermont and Maine to enjoin enforcement of Vermont’s S.115 prescription drug pricing and transparency act and Maine’s LD838, An Act Protecting the Confidentiality of Prescription Information. Both laws, due to go into effect Jan. 1, 2008, would prevent pharmacies from selling prescriber- or patient-identifiable records to health information organizations without prescriber consent. Currently, corporations like the plaintiff organizations sell those records to pharmaceutical companies, which use them to target marketing to individual prescribers.
"As a physician, I want my prescription information to be protected from commercial exploitation," said Dr. Ben Schaefer of Maine, a member of the National Physicians Alliance. "I do not dispute the importance of prescription information in research or post-marketing surveillance of side effects, and neither use is prohibited by the statutes in Maine or Vermont."
The suit follows on the success a similar court challenge this year, when U.S. District Court Judge Paul Barbadoro overturned New Hampshire’s first-in-nation prescription restraint law on first amendment grounds. The state of New Hampshire is vigorously appealing that April 30 ruling.
But legal experts who have studied the New Hampshire case and the issues around prescription data mining say Vermont and Maine’s ‘second generation’ prescriber confidentiality laws will stand up to the challenge.
“Vermont and Maine’s data-mining laws are resilient, they will stand up to this challenge,” said Sean Flynn, a legal consultant for the Prescription Project and associate director of the Program on Information Justice and Intellectual Property at the Washington College of Law at American University. “They were both written with the New Hampshire challenge in mind, and are stronger for it,” Flynn added.
“The incorporation of prescribers into the commission structure of pharmaceutical sales incentives debases the medical profession, and, the more the practice becomes public, breaks the chain of trust between doctor and client,” said Flynn.
If the New Hampshire court’s decision were allowed to stand, a massive amount of legislation at the state and federal level safeguarding consumer and citizen information from commercial marketing uses would be called into question – from laws protecting the privacy of internet transactions, video rentals, do not call lists, to credit card information, DMV records, and other identifying information that marketers would like to use to target their marketing to consumers.
There is no First Amendment right for marketers to have access to any identifying data they want to guide their efforts.
The full legal analysis, as well fact sheets on prescription data mining, can be found on the Prescription Project website, www.prescriptionproject.org.
About The Prescription Project
The Prescription Project promotes evidence-based prescribing and works to eliminate conflicts of interest in medicine due to pharmaceutical marketing to physicians by working with academic medical centers, professional medical societies, public and private payers, and state and federal policymakers. The Project is led by Community Catalyst in partnership with the Institute on Medicine as a Profession with funding from The Pew Charitable Trusts.