Industry's mining of prescriber data will be reviewed by US Supreme Court

After hearings later this spring, a decision is expected by early summer from the Supreme Court, which will resolve conflicting rulings from two lower federal courts. At issue: the ability of data-mining companies to collect prescribing data (from pharmacies, hospitals and other organizations) and use this to track the prescribing practices of individual physicians, without physician consent. Three states—Vermont, Maine and New Hampshire—have passed laws restricting such data collection, generally holding that it is an invasion of privacy and an intrusion into physicians’ medical practice. Earlier, the 2nd federal circuit court upheld the law for Maine and New Hampshire; in November, the First Circuit Court struck it down. By taking this case, the Supreme Court will resolve the conflict between lower-court rulings.

The health data companies contend that collecting and publishing prescriber data assists in promoting drug safety and is permissible under their First Amendment free-speech rights. A joint communique by the three companies reads: “We are pleased that the Supreme Court accepted our recommendation to review the constitutionality of state laws banning the use of physician prescribing information in the truthful marketing of safe and effective medicine. We believe the justices will agree with the Court of Appeals that laws like this one violate the First Amendment right of free speech. In addition, we applaud the decision of the great majority of states and the federal government not to adopt similar restrictions, which harm patients by making it more difficult to communicate timely and often vital information about new medicine and safety updates on existing medicine.”

William Sorrell, Vermont Attorney General, issued a statement saying that “"Vermont doctors pressed for this law because of their concerns about privacy and because they view this data mining practice as an intrusion into the way doctors practice medicine."

Around 100 bills have been offered in the past several years among state legislatures on these bans, although the three New England states are the only ones to pass such a law. Forbidding the use of these data would seriously crimp the firms’ ability to track prescribing and drug usage; however, under the voluntary marketing guidelines from PhRMA that some life sciences companies ascribe to, the data are not supposed to be freely distributed to most pharma reps.