Last year, I was co-counsel on anÂ amicus curiaeÂ briefÂ (pdf) inÂ IMS Health v. Ayotte, a case about aÂ New Hampshire state lawÂ that banned the sale of prescriber-identifiable prescription drug data for marketing purposes.Â This week, the US Court of Appeals for the First Circuit upheld (pdf) the New Hampshire law. This decision overturns the ruling (pdf) of the lower court,Â which held that the New Hampshire law violated the free speech rights of data mining companies.Â
The First Circuit rejected the free speech argument and based their decision on two points. First:
In our view, the portions of the law at issueÂ here regulate conduct, not speech. Unlike stereotypical commercialÂ speech, new information is not filtered into the marketplace withÂ the possibility of stimulating better informed consumer choices […] and the societal benefits flowing from the prohibitedÂ transactions pale in comparison to the negative externalities Â produced. This unusual combination of features removes theÂ challenged portions of the statute from the proscriptions of the First Amendment.Â
Even if theÂ Prescription Information Law amounts to a regulation of protectedÂ speech â€” a proposition with which we disagree â€” it passesÂ constitutional muster. In combating this novel threat to the cost-effective delivery of health care, New Hampshire has acted with asÂ much forethought and precision as Constitution demands.
The New Hampshire law focused on “physician detailing,” whereÂ pharmaceutical sales representatives tailor their sales pitches to individual physicians based on their past prescription-writing habits.Â In passing the law, the state legislature attributed high prescription drug costs, in part, to both the funding pharmaceutical companies devote to detailing, and the fact that “detailed” physicians tend to write prescriptions for pricier drugs.Â The First Circuit spoke to this, noting:
The record contains substantial evidence that, in several instances, detailers armed with prescribing histories encourage the overzealous prescription of more costly brand-name drugs regardless of both the public health consequences and the probable outcome of a sensible cost/benefit analysis.
When passing the prescription confidentiality law, the New Hampshire legislature also noted the privacy interests that patients and physicians have in preventing third parties from receiving in-depth data on every prescription written.Â The marketing companies in the New Hampshire case werenâ€™t asking for data that would outright link individuals to their prescriptions. However, there are privacy problems thatÂ can arise from â€œde-identified data.â€ InÂ theÂ amicusÂ brief that I was co-counsel on, we detailed these problems, arguing:
Although de-identification measures are increasingly innovative and computationally complex, patient data is still vulnerable to attacks because sophisticated re-identification programs are also being developed. Individuals can be re-identified using information such as zip code, date of birth, and gender and then comparing that data to publicly available information. Such information is easily accessible via birth and death records, incarceration reports, voter registration files, and driverâ€™s licensing information.
Maine and Vermont have similar prescription confidentiality laws; several states are considering such laws. Earlier this year, a California billÂ that would have allowed pharmacies to sell customersâ€™ prescription data for marketing purposes was defeated in the state Assembly.