Maine Law Curbing Rx Data Violates Free Speech
13 CommentsBy Ed Silverman // December 22nd, 2007 // 7:35 pm
A federal judge ruled a law that would make a doctor’s prescription-writing habits confidential actually violates the US Constitution. US District Judge John Woodcock concluded that the law, which was scheduled to take effect Jan. 1, would prohibit “the transfer of truthful commercial information” and “violate the free speech guarantee of the First Amendment,” the Associated Press reports.
The law had been challenged by three IMS Health, Wolters Kluwer Health and Verispan, which collect, analyze and sell prescription data to drugmakers, government agencies and researchers. The companies argued the law would prevent the health care community from monitoring the safety of new drugs. The bill’s supporters contend it is one of several new laws passed by Maine legislators that aim to address high health care and prescription drug costs.
In a 42-page decision issued Friday, Woodcock said he relied heavily on an April 30 ruling by US District Judge Paul Barbadoro in New Hampshire that shot down a similar law in that state, the AP reports. A similar case is also pending in Vermont. The primary sponsor of Maine’s legislation, Democratic Rep. Sharon Treat, said she was disappointed with the ruling and anticipates an appeal. Treat also runs the National Legislative Association on Prescription Drug Prices.
The Maine law, one several enacted by the Legislature in an attempt to address high health care and prescription drug costs, was modified after the New Hampshire ruling in an attempt to avoid constitutional flaws. Under an “opt out” provision, drug prescribers were allowed to prevent release of information that identifies them. Appeals by Maine and New Hampshire could be consolidated if judges at the 1st US Circuit Court of Appeals find that they involved similar issues.
Assistant Attorney General Thomas Knowlton, who argued the case on Maine’s behalf, said Friday that neither he nor Attorney General Steven Rowe had an opportunity to study Woodcock’s decision. “The attorney general is disappointed by the judge’s conclusion,” Knowlton tells the AP. “We obviously believed the New Hampshire statute is very different than Maine’s.”
Source: The Associated Press
Chris
Credit card purchases by individuals are also ‘truthful commercial information’ yet they are not subject to being collected and sold for commercial purposes under the First Amendment. In fact, there would be a whole lot of uproar if that were even proposed.
Any how exactly does the health care community ‘monitor the safety of new drugs’ by collecting and selling this information at the individual prescriber level? Who exactly is doing this monitoring and why is it necessary to have individual prescriber level data?
Atlex
Chris,
Credit card information is collected and sold for commercial purposes. It is just not sold at the identifible individual (end user) level. Similarly, prescription data is not sold at the identifiable patient (ie, end user) level. Selling at the physician level is not the same. Physicians are an intermediary in a commercial transaction. They are not the end user.
Finally, it doesn’t matter whether the prescriber level data is “necessary” or not. Legal precedance suggests that it is protactable on the 1st amendment.
Atlex
Chris
The physician is the decision maker in this case, even though a patient ends up with the script. It is an invasion of privacy to have individual physician prescribing habits collected and sold, particularly for financial benefit. I have done behavioral profiling - we have dabblers, loyalists, etc. etc. Despite the fact that it is highly valuable for the pharmaceutical company to be able to look over a physician’s shoulder and determine who should get those samples, be invited to events, participate in Phase IV studies and generally be the target of those marketing dollars, this does not make right. This is a flawed interpretation of First Amendment rights (along with the proposal that pharma companies should be free to say anything they want to physicians, including off-label messages and messages that are inconsistent with labeling.)
Atlex
Chris,
In your opinion it may be flawed, but now at least two courts disagree with you. And, what makes you the arbiter of 1st amendment rights. And, why do pharmaceutical companies not have those rights in your mind.
A lot of people think idiots shouldn’t have 1st amendment rights, but I disagree. The price I pay is having to read blogs from morons.
Atlex
Atlex
Curious George
Still waiting for an answer to this question from Chris. It would be useful to have a specific, not a theoretic, example:
Any how exactly does the health care community ‘monitor the safety of new drugs’ by collecting and selling this information at the individual prescriber level?
Chris
> And, why do pharmaceutical companies not have those rights in your mind.
I have worked on TWO drugs that have killed, disabled and/or significantly hurt hundreds if not thousands of patients because safety issues were hidden, and management was too damn greedy to communicate known safety issues to physicians. Let’s just say I have seen first-hand the downside to ‘free speech’. As a result, I DO NOT believe that allowing pharma companies to say anything they want is a right guaranteed in the constitution.
Also, the fact that pharma companies can designate 90% of their commercial information as confidential yet physicians do not have any rights to practice without having pharma looking over their shoulder strikes me as somewhat inequitable.
Lisa Van S
I actually agree with Atlex. But with that said,…Safety of Medications, should be just as important as the first Ammendment. Life, Liberty, and the persuit of happiness, should ring a bell.
Chris
Lisa-
Are you agreeing with Atlex that selling physician-level prescribing information should be allowed, or that pharma companies should have the right of free speech?
Lisa Van S
Chris,
I am actually agreeing to both.
My reasons are lenghty, and even could be considered synical by many.
With that said, My nephew, who dons the Marine uniform, and who sacrifices his life, to protect our rights, under the costitution.(He will be returning to Iraq after the New Year) This issue will never be cut and dry!!
Bottom line: Do I have a problem with my Dr. making it known what meds were prescribed to me,.. no, as long as my medical records stay private,.. I really dont have a problem with that.
Hell,.. I became an open book the day I sued GSK on behalf of my minor child…
Chris
How can you support the ‘right’ of a pharma company to free speech when you clearly have an issue with pharma companies hiding safety concerns and not disclosing negative clinical trials?? How do you reconcile these views?
Lisa Van S
By giving them enough rope, that they will eventually hang themselves!!
Chris
Please tell me you are not serious.
How exactly is this ‘hanging’ supposed to happen?
Ralph
It would be better for everyone, if this data was not collected and sold. The real winners in this are the data vendors. Not pharma, not the patient, and not the prescribers. Having been in pharma for years, I can tell you that whole industry has been going down hill since the advent of prescriber level data and advertising to the consumer. It may be legal, it may be ok. However, the pharma industry has been sold a bill of goods by the data management companies. Reps go into offices assuming the answer, instead of asking questions to uncover true needs of the customer and patient. Look at the stock prices of pharma companies since 1994, when this data became available and advertising to consumers took off.