The US Supreme Court tomorrow will review a highly controversial issue - the constitutionality of a Vermont law that restricts the sale of prescription drug info identifying prescribers and patients for commercial marketing purposes. The practice is known in the pharma world as data mining and has been building for some two decades ever since data was gathered by market research firms, but has since sparked heated arguments over free speech, health care costs and information privacy.

The information at issue includes the name of a prescribing physician, patient age and sex, the type and strength of each drug prescribed, and the date and location of prescription. Pharmacies, of course, are required by law to collect and maintain data about each prescription that is filled, and are allowed can to sell the information, which the research firms gather and repackage. Patient names are encrypted, but drugmakers are able to track types of patients and prescribing patterns.

Consumer advocates maintain the law can protect doctor-patient relationships and consumer privacy, promote patient safety and also contain the rising expense of medications (here is the Vermont brief). Vermont, in fact, passed its law three years ago and then amended it in hopes of staving off court challenges. Nonetheless, a federal appeals court ruled against the state law last November (back story). Only two other states enacted such legislation - New Hampshire and Maine - and both survived efforts to have them overturned.

But the Vermont law was challenged by healthcare research firms, IMS Health and Wolters Kluwer health, as well as the PhRMA trade group, which argue the legislation would hurt public access to healthcare info and violate commercial speech (read filings here). Numerous other groups have lined up to support the challenge by filing briefs, including the US Chamber of Commerce (read here); the National Association of Chain Drug Stores (see this); the BIO trade group (look here); and media companies, such as the Associated Press and Bloomberg News (look here).

On the other side of the table, briefs have been filed in support of the Vermont law by the federal government (read this); nearly three dozen states (read this); The New England Journal of Medicine and its publisher (read this); the AARP (look here); the AFSCME union (see here), and the Electronic Frontier Foundation (read this).

“It’s very powerful data and it’s easy to understand why drug companies want it,” Norman Ward, a family physician in Burlington, Vermont, tells The New York Times. “If they know the prescribing patterns of physicians, it could be very powerful information in trying to sway their behavior - like, why are you prescribing a lot of my competitor’s drug and not mine?” Adds Wells Wilkinson, a staff lawyer at the Community Catalyst nonprofit group that filed a brief supporting Vermont: ““If the court is not going to protect personal and confidential health records, how could any consumer transaction be protected?”

But we spoke with the former IMS exec who developed and launched the controversial database nearly 20 years ago and he says physicians are off the mark. “It’s really showing the increasing desperation of physicians to avoid having their behaviors monitored. The law was initiated by the Vermont Medical Society, but has two flawed premises,” says Bob Merold, who is now a consultant with Knowledgent, a business information insights consulting firm. “One, this (the database) is used in pharma marketing to drive up medical costs, when in fact, the law does nothing to stop drug companies from marketing or talking to doctors. The law does nothing to reduce or impact the actual marketing. It does nothing to effect the behaviors the physicians say they are trying to curtail.”

“Second, physicians says it invade their privacy, yet the law allows the collection of data for things like outcomes analysis and fraud detection. And in Obama health care reform, there are many provisions for collection of doctor behavior for best practices, so the notion that physicians have privacy is totally erroneous. This boils down to doctors would like a world where no one is looking over their shoulder at their practice of medicine, but there is plenty of data to suggest that many doctors fail to adhere to best practices,” he continues.

However, Merold also chastises the research firms for allowing this legal battle to exist. “It’s a shame the data vendors have not developed the database for purposes other than pharma marketing, such as outcomes. If they had, there would have been no question about the public value of this data and there would have been no need for the law to have been passed.”

The Supreme Court will not issue an immediate decision, of course, but what do you think?

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