Supreme Court: Can State Governments Dictate How Publicly Available Information Can Be Used?

April 27, 2011
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At issue: Doctors prescribing records:

The data has become more available because pharmacies, which are required by law to collect and maintain detailed files about each prescription filled, can sell records containing a doctor’s name and address, along with the amount of the drug prescribed, to data brokers.

The law:

gives doctors the right to consent before their prescribing information may be sold and used for marketing.

Some exceptions:

At issue: Doctors prescribing records:

The data has become more available because pharmacies, which are required by law to collect and maintain detailed files about each prescription filled, can sell records containing a doctor’s name and address, along with the amount of the drug prescribed, to data brokers.

The law:

gives doctors the right to consent before their prescribing information may be sold and used for marketing.

Some exceptions:

Vermont allows those records to be used in research and by law enforcement, said Thomas C. Goldstein, a lawyer representing IMS Health. Moreover, he said, drug makers are allowed to buy the very same records so they can identify doctors whose patients might be good candidates for clinical trials or communicate drug safety updates.

Some side effects:

such laws reduce the ability of drug makers to quickly communicate with specialists about new drugs for rare diseases, a situation that could make it prohibitive for, say, a small biotechnology company with a tiny sales force to market a breakthrough medication, said Randy Frankel, the vice president for external affairs at IMS Health.

The free speech issue:

But industry representatives contend that Vermont should not be allowed to cherry-pick certain approved uses for the records in question while restricting those that conflict with what the law’s opponents say is the state’s apparent agenda: promoting less expensive generic drugs in an effort to lower health care costs.

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