Commercial Speech Trumps Privacy When It Comes to Drug Marketing

June 24, 2011
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Yesterday, the Supreme Court ruled 6-3 that states can’t pass laws like one in Vermont that prevent drug companies from gaining access to the prescribing records of physicians. Pharmaceutical firms use these records to determine which doctors should be bombarded with detailers and marketing messages to beef up sales of broadly prescribed drugs like anti-depressants, anti-pain pills, cholesterol-lowering and blood pressure-control meds.

Yesterday, the Supreme Court ruled 6-3 that states can’t pass laws like one in Vermont that prevent drug companies from gaining access to the prescribing records of physicians. Pharmaceutical firms use these records to determine which doctors should be bombarded with detailers and marketing messages to beef up sales of broadly prescribed drugs like anti-depressants, anti-pain pills, cholesterol-lowering and blood pressure-control meds.

The high court said limiting access to these records would be an unwarranted restriction on free speech. Hogwash. The routine release and sale of these records by pharmacies and marketing firms is an unwarranted intrusion into the patient-physician relationship and an attack on patient privacy.

Here’s a hypothetical. My primary care physician belongs to a five-member practice, whose pharmacy records indicate all five are heavy prescribers of SSRIs, a class of drug commonly prescribed for mild depression and anxiety. If companies can get those records, can’t my self-insured employer? And if my employer sees those records, what will they think of me?

States like that have restricted access to these records did the right thing. Such laws protect patient privacy, and have the side benefit of restricting unwarranted and unnecessary drug industry marketing. If the pro-business Roberts court in is mindless pursuit of boosting business can’t see its way clear to seeing those issues, the medical profession must step in and declare it unethical to allow drug industry marketers into their offices and clinics.