The Supreme Court on Tuesday is slated to hear a case that could put an electronic muzzle on the use of some pharmacy data to target physicians based on their identifiable prescription records. Data mining firms and their drug company clients use the information for marketing programs.
There are currently three states, New Hampshire, Maine, and Vermont that have enacted laws restricting marketing to doctors based on pharmacies' prescription data that identifies physicians.
The Vermont law, enacted in 2007, gives physicians the right to consent before their prescription information can be sold or used for marketing purpose. The law has been challenged by several data collection firms, including IMS Health and Pharmaceutical Research and Manufacturers of America. A federal court had upheld the law, but it was overturned late last year by an appellate court.
Now, the Supreme Court is slated to hear arguments in the case--William Sorrell, attorney general of Vermont vs. IMS Health Inc et al.--on whether Vermont's prescription data confidentiality law violates the First Amendment's free speech protection.
Though the pharmacy data in question doesn't identify patients--whose information is protected under HIPAA--the debated data does identify physicians, allowing drug companies who purchase the information from data collection companies to analyze the prescription writing trends and histories of doctors in an attempt to develop marketing strategies that target certain doctors.
These "detail" marketing activities can include identifying trends among doctors who tend to prescribe certain popular prescription drugs from certain makers, as well as doctors who appear to have changed their preferences of specific name brand medications to generics.
Having this data allows pharmaceutical companies to specifically target physicians with more customized marketing programs, such as supplying the doctors with free drug samples to try on patients.
"The Vermont law imposes limits on the sale of prescription data for commercial purposes," said Gregory Beck, an attorney with Public Citizen Litigation Group, which filed a brief in support of the Vermont law. "The Supreme Court will likely decide before the end of June whether the limits restrict free speech or if anti-detailing laws can stay on the books," he said in an interview with InformationWeek.