The courts delivered new setbacks to companies that mine prescribing data and sell information about the habits of individual physicians as a marketing tool for pharmaceutical companies, a practice banned by laws passed in three Northeast states. But the industry will continue to make its case that the bans are bad policy regardless of whether they ultimately prove constitutional.
On June 29, the Supreme Court declined to review a case challenging a pioneering 2006 New Hampshire law that banned the use of prescriber-specific data for marketing. In the previous week, the 2nd U.S. Circuit Court of Appeals declined to stop a similar Vermont law from going into effect July 1 pending the outcome of the industry's appeal of an April decision upholding the law.
A ban in Maine was struck down by a district court, but that case is on appeal in the 1st U.S. Circuit Court of Appeals, the same court that previously upheld the New Hampshire law after it was similarly judged by the lower court.
Advocates of replicating these bans throughout the country, including the National Legislative Association on Prescription Drug Prices, which goes by NLARx, and Community Catalyst, said that the legal developments will bolster their efforts. “In the absence of any federal protections, states have a responsibility to limit this harmful marketing tactic which hikes healthcare costs, can be detrimental to medical care and interferes in the doctor-patient relationship,” said Sharon Treat, executive director of NLARx and a state representative in Maine, in a written statement.
But IMS Health and SDI Health, plaintiffs in both cases, downplayed both developments, saying it's rare for either court to grant such requests. Oral arguments in the Vermont appeal will be heard later this year, and the industry will attempt to persuade the court that the law is unconstitutional because it restricts protected speech and attempts to regulate conduct that happens outside Vermont.
Randy Frankel, IMS Health's executive vice president for external affairs, pointed out that no state has adopted a ban since the Vermont law was passed in 2007, although many states have considered them.
The same data sold to drug companies to help them tailor their pitches to individual physicians are what's needed to determine what treatments are yielding the best results and which physicians are using them, Frankel said. Advocates of the bans argue that the laws don't prohibit the use of the data for research, just marketing, to which Frankel responded: “That's like saying the auto industry can build cars but they can't charge for them; they can give them away for the police and fire departments.”
Frankel also said that keeping the prescribing information out of the hands of drugmakers will hurt patients. “The fundamental thrust of these laws is to reduce the use of newer medications,” he said. “What about the drugs that are better? You're putting an impediment between the manufacturers of the drugs and the doctor who treats these populations.”
According to Community Catalyst, there are bills banning data-mining pending in Hawaii, Massachusetts, Minnesota and New York, and bills that died this year in eight other states. Marcia Hams, director of prescription access and quality for the Boston-based advocacy group, said the momentum of legal successes in the Northeast “really does embolden legislators who are interested in this issue to go forward.”
Hams called Frankel's premise that his industry's work is necessary for the success of healthcare reform “quite contradictory.” “They're driving inappropriate use of drugs through the sale of this data, then researchers are turning around and researching the bad practices engendered by those resources,” Hams said. “That doesn't make any sense at all.”
A version of this story initially appeared in this week's edition of Modern Healthcare magazine.
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