The motto ‘Live Free Or Die’ appears to be something of a rallying cry in New Hampshire this week among supporters of a bill that was struck down by a federal judge. The legislation prevented companies such as IMS Health and Verispan from collecting prescribing data from docs, pitting industry and free-speech advocates against consumer and privacy groups.

New Hampshire officials may appeal. Meanwhile, Sean Flynn, associate director of American University’s Program on Intellectual Property, and a lawyer for the New Hampshire Medical Society and the National Legislative Association on Prescription Drug Prices, offers a few pointers for other states that may be discouraged by this week’s ruling. He suggests several steps that states may pursue in regulating detailing:

* states interested in regulating the trade in prescriber-identified prescription information need to create a fuller record explaining how frequently detailing based on datamining has become harassing to doctors in ways that prohibiting datamining without their consent will halt;

* states may consider more narrowly tailored mans to stop data trading, for example permitting the information to be released to pharmaceutical companies if the doctor has explicitly consented to the release;

* states should include specific findings on the adequacy of alternative measures, including licensing detailers, prohibiting false and misleading detailing, use of Medicaid formularies, bans on gifts, and counter-detailing programs;

* states may consider bolstering an expectation of privacy in prescription records by including statutory findings and inviting testimony that doctors do not and should not expect that their prescriptions will be used for purposes other than to fill and process prescriptions;

* target the most harmful and biased uses of datamining, e.g. by allowing their use for evidence-based marketing, but not use for marketing information that isn’t supported by independent studies & sources (this may make the statute closer to the Barnicki “use” regulation);

* states may consider alternative regulations, such as licensing and regulating detailers to cut down on the most abusive practices including gifts, pushing off-label uses, making misleading statements, etc.

“Ultimately,” he says, “the New Hampshire decision only binds New Hampshire and is likely to be headed for appeal. Other states may legislate in this area and create conflicting precedents that will have to be unified by the First Circuit and ultimately the Supreme Court.”

A Sean Flynn bio.
[tags]Data Mining, IMS Health, New Hampshire, Verispan[/tags]