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4/28/2011
10:15 AM
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Does Vermont Prescriber ID Law Violate Free Speech?

The Supreme Court might not even be hearing the case if the state's ban on using a doctor's prescription records for marketing purposes were written as "opt-out" rather than "opt-in."

Unless Vermont doctors provide consent, the state's prescription confidentiality law now prohibits the distribution and use of prescriber-identifiable data for marketing purposes. But that may all change, depending on whether or not the U.S. Supreme Court decides if this law is a violation of the First Amendment.

Opponents to the ban--including data mining companies and pharmaceutical firms--contend that the ban violates free speech rights.

Opponents argue that distribution and use of prescriber-identifiable data is unfairly allowed for other purposes, including by the state of Vermont itself. For instance, the state can use the information to help steer doctors into writing prescriptions for cheaper generic drugs for patients whose healthcare expenses are covered by government programs.

Pharmaceutical companies contend that in contrast, the ban unfairly prohibits the use of prescriber-identifiable data to help them more effectively "detail" marketing of their name-brand products to doctors.

But the important point that needs to be remembered in all this is that Vermont does allow prescriber-identifiable data to be used for marketing purposes, as long as the doctor gives consent.

For some busy doctors, a visit by a pushy pharmaceutical sales rep is probably as annoying as a dinner-time call from a telemarketer. But if the prescriber-identifiable data can shorten the sales pitch and more accurately focus it on the doctor's interest, then the detail marketing probably saves time for the doctor while making the salesperson more productive.

On the other hand, some doctors don't want to be bothered by drug company sales pitches at all, and others are likely bothered by the fact that marketers have the ability to dissect their prescribing habits.

Again, what's key in all this is consent. If doctors allow their data to be used, fine. If not, the Vermont law's consent rule as it stands now is much like a telemarketer no-call list, in my opinion.

The question is whether the law would've satisfied more or fewer constituents had it been written to allow the use of prescriber-identifiable data for marketing unless the doctor specifically opts out.

Marianne Kolbasuk McGee is a senior writer for InformationWeek.


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