Boston, MA, May 8, 2007. New Hampshire Attorney General Kelly Ayotte announced last week that she will appeal the decision of the US District Court, New Hampshire Circuit that found the New Hampshire law protecting physician prescribing information from being sold to pharmaceutical companies for marketing purposes “unconstitutional.”  Despite this ruling, the states of Maine and Vermont are seeing strong bicameral advances on similar prescription drug reform bills.

State legislators in Maine and Vermont are moving ahead on bills to protect prescriber privacy and reform prescription drug marketing activities, including the sale of personally-identifiable prescribing data for marketing purposes to pharmaceutical companies.

In Vermont, bill S.115 would require physicians’ consent for their prescribing data to be sold and allocates new resources for an “academic detailing” program that would send professionals to physicians’ offices with independent, science-based information on the safest, most effective drugs.   Different versions have passed the Vermont House and Senate and will be reconciled in conference committee.  The comprehensive bill also includes a pilot program to offer free samples of generic drugs in physician offices.

In Maine, House and Senate committee members voted 12-1 to move to the floor the bill LD 4, which would establish a system for physicians and other prescribers to opt-out of prescriber-identified data lists. Maine legislators also voted unanimously to send an academic detailing bill, LD 839, to the full legislature for a vote.

“The sale of provider data to pharmaceutical companies allows sales reps to be very effective in influencing physicians and drives them to prescribe the newest, most costly products,” said Jerry Avorn, M.D. Professor of Medicine at Harvard Medical School.  “This can also lead to the widespread use of riskier drugs, as happened with Vioxx. It is time we control sales of this information and get physicians unbiased information on drugs.”

“It is very encouraging that the leadership in Vermont and Maine are taking on this issue,” said Rob Restuccia, Executive Director of The Prescription Project.  “Though the New Hampshire ruling is a setback, states are making it clear that prescribing should be based on science, not marketing, and physician data should not be sold without permission.”

“The legislation being discussed in these statehouses is thoughtful and timely,” said Marcia Hams, director of Prescription Policy Initiatives at The Prescription Project.  “These important bills contribute to the national conversation about health care reform, and how critical prescription drug issues are to that conversation.”

Earlier this week, U.S. District Court Judge Barbadoro overturned New Hampshire’s data-mining ban, which took effect last summer and prohibited pharmaceutical companies from using doctors’ prescribing information in marketing specifically to each physician.  The court ruled that it impinged on the first amendment speech rights of data companies like IMS and Verispan, which sell physicians prescribing records to pharmaceutical companies for millions of dollars each year.

“Judge Barbadoro’s opinion is sweeping and disturbing in many respects,” said Sean Flynn, a legal advisor to The Prescription Project. “It prevents New Hampshire from implementing the same common sense data privacy laws that restrict the trade in prescription records in Europe and several Canadian provinces.”

According to Flynn, the case for appeal is strengthened by the extent of Judge Barbadoro’s ruling and its implication that doctors do not have the same rights to privacy that patients do.  History also is favorable to New Hampshire’s appeal; other recent pharmaceutical laws overturned in district courts have been subsequently upheld by the U.S Court of Appeals and Supreme Court.  Flynn said the scope and specificity of the bills pending in Vermont and Maine make them less susceptible to rulings like the one in New Hampshire.
"Several states around the country are moving ahead to strengthen prescriber privacy protections and regulate marketing tactics, despite the District Court’s action,” said Sharon Treat, Executive Director of the National Legislative Association on Prescription Drug Prices.  “We applaud New Hampshire Attorney General Ayotte's decision to appeal this decision, which should not be the last word on such important questions of prescriber privacy, First Amendment speech, and public health.”

About The Prescription Project
The Prescription Project is led by Community Catalyst in partnership with the Institute on Medicine as a Profession.  Funded by the Pew Charitable Trusts, the Project seeks to eliminate conflicts of interest created by pharmaceutical industry marketing by promoting policy change among academic medical centers and professional medical societies as well as in public programs and private insurers/payers. The Project will also will advance state and national level policy solutions, such as bans on industry financial inducements to physicians and the commercial use of physician prescribing records; and the implementation of academic detailing.