Thanks to a recent decision by the U.S. Court of Appeals for the First Circuit, pharmaceutical companies will have to find new ways of obtaining information about doctors whose prescribing habits they hope to influence in at least one state. A three-judge panel unanimously upheld a 2006 New Hampshire law banning a common method of obtaining physician profiles that help companies determine if a particular doctor would be receptive to marketing techniques such as canvassing, free lunches, and drug samples.

The law prohibits data mining companies from buying prescription information from insurers and pharmacy benefit managers, then assembling physicians’ prescription histories and selling the information to pharmaceutical companies. Two of the data-mining companies, IMS Health and Verispan, argued that the law constitutes an impermissible limitation on free speech and that their use of the information has important public health benefits.

The New Hampshire legislature also cited public health as its rationale for enacting the law. Lawmakers acted on the belief that the targeted promotions made possible by physician histories may cause doctors to prescribe more expensive drugs when equally effective generics provide a more cost-effective option.

The court sided with the legislature, stating:

“The challenged portions of the statute principally regulate conduct, and to the extent that the challenged portions impinge at all upon speech, that speech is of scant societal value. . . . [The plaintiffs] ask us in essence to rule that because their product is information instead of, say, beef jerky, any regulation constitutes a restriction of speech. We think that such an interpretation stretches the fabric of the First Amendment beyond any rational measure.”

The data mining companies have expressed their disappointment, but data privacy advocates praised the decision. They cite the intrusiveness of mining prescription histories, which include the names of patients, doctors, and drugs, and warn against the potentially “staggering” effects of giving companies the right to sell information relating to all consumer purchases.

Although the New Hampshire data mining law is the first of its kind, the First Circuit decision also upheld a 2008 Maine statute. The Second Circuit is currently considering a similar statute in Vermont.

These statutes represent an important effort to curb the invasion of patients’ privacy for profit, closing an obvious loophole in existing laws that protect the confidentiality of medical information. The First Circuit’s decision not to extend First Amendment protection to the companies’ behavior indicates an important willingness on the part of the judiciary to distinguish between the sale of information and other types of speech. If other courts follow suit, patients’ privacy protections will only benefit.

Erica Youngstrom

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