Supreme Court Reviews Data Mining & Free Speech
3 CommentsBy Ed Silverman // January 7th, 2011 // 5:42 pm
After several years of courtroom battles, the US Supreme Court has agreed to review whether laws that ban data mining - specifically, the sale of prescription drug info that identifies prescribers and patients for commercial marketing purposes - are unconstitutional (see this).
The move, which is not surprising, comes after conflicting rulings issued by different federal appeals courts. Last November, the US Court of Appeals for the Second Circuit shot down a Vermont law after deciding it violated the First Amendment right to free speech (see here). Previously, the US Court of Appeals for the First Circuit upheld similar statutes passed by Maine and New Hampshire (read this).
The challenges to the state laws were made by three healthcare research firms - IMS Health, SDI, Wolters Kluwer health - along with the PhRMA trade group, which have argued in various courts that the statutes hurt public access to healthcare info and violated commercial speech (you can read the briefs filed with the Supreme Court here and here). Drugmakers want this data so they can learn which docs are high prescribers and figure out who to target for the hard sell (see a brief filed by BIO here).
The states, however, have maintained the laws can protect doctor-patient relationships and consumer privacy, promote patient safety and contain health care costs (you can read the brief filed by Vermont here). Consequently, the Supreme Court will decide the extent to which the data mining controversy involves commercial transactions or speech.
Addi
Thanks for the links to the briefs.
I am surprised that this is being framed as a first amendment case in the first place. To me, I thought the Vermont law was limiting commercial transactions, the sale of prescription data without permission, not speech acts. Though the commercial transactions are related to the speech acts, this argument is so broad to extend to links between all speech and all commercial transactions. McConnell (IIRC) firmly established money is speech in the political realm, but I don’t think this principle has been extended into commercial speech realms.
Second, I am shocked at the attempts to apply previous Washington Legal decisions on off-label promotion and scientific communication. The first brief links detailing visits with scientific communication, an idea I consider detestable.
Insider
THis data is what screwed the entire industry up to begin with. It levels the playing field with reps with no expereince and the ones that have experience. It also puts more pressure on the reps to get business from selected offices. It is projected sales or estimated sales at best and sometimes has very large errors occur based on which pharmacies are reporting at the local level. It also took away the reps decision on whom to call on which was much of the fun way back and gave the seasoned reps a reason for producing more. It currently tells the inexperienced reps which physicians they should spend their budgets on. A certain number of the top physicians are invovled in medicaid fraud which sends more reps to them to get their Fraudulant business also, not a good thing for the industry.
manjeet
Prof. Arindam Chaudhuri - Gandhism vs cowboy Bush
Arindam Chaudhuri. Gandhism vs cowboy Bush … So much for freedom of speech …
http://www.arindamchaudhuri.com/gandhism-vs-cowboy-bush.html
http://www.arindamchaudhuri.com/gandhism-vs-cowboy-bush.html