Prescription data mining bans struck down by US Supreme Court

Ref: Yahoo, News, CNN Health, MSN Money, Yahoo Finance, The Wall Street Journel

June 23rd, 2011

The US Supreme Court on Thursday struck down a state law that prohibits the use of prescription drug records for marketing purposes. In a 6-3 verdict, Justice Anthony Kennedy said that Vermont’s Pharmaceutical Confidentiality Law violates the speech rights of drugmakers and data mining companies, such as IMS Health, Verispan and Source Healthcare Analytics, that collect and sell such information.

The parties in the case urged the higher court to decide the issue after a federal appeals court struck down Vermont’s law, but a separate appeals court upheld similar laws in two other states. Vermont had argued that its law protected the privacy of doctors, and would help control health-care costs. However, data mining companies said the information about doctors' prescribing patterns can be used to help monitor safety issues for new medicines, to reduce costs, and for research purposes.

In the Supreme Court opinion, Kennedy noted that although Vermont's law grew out of a desire to control health-care costs by increasing the use of generic drugs, "the state cannot engage in content-based discrimination to advance its own side of a debate." He indicated that "speech in aid of pharmaceutical marketing…is a form of expression protected by the Free Speech Clause of the First Amendment."

Currently, Maine, New Hampshire and Vermont are the only states to have enacted laws banning any use or publication of the information for the purpose of marketing brand-name drugs.

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