A U.S. District Court judge in New Hampshire ruled Monday that a state law passed last year attempting to curb the use of prescription drug data to profile physician prescribing habits and other commercial activities was an unconstitutional infringement of a corporate right to free speech, according to a statement by the two plaintiffs in the case. The plaintiffs are data-miners IMS Heath and Verispan, the corporate name for a consolidation of data-miners Quintiles Transnational Corp., Scott-Levin Associates and pharmaceutical wholesaler and healthcare information technology vendor McKesson Corp.
The law, which has received national attention, stated that "records relative to prescription information containing patient-identifiable and prescriber-identifiable data shall not be licensed, transferred, used or sold by any pharmacy benefits manager, insurance company, electronic transmission intermediary, retail, mail order or Internet pharmacy or other similar entity, for any commercial purpose, except for the limited purposes of pharmacy reimbursement; formulary compliance; care management; utilization review by a healthcare provider, the patient's insurance provider or the agent of either; healthcare research; or as otherwise provided by law. Commercial purpose includes, but is not limited to, advertising, marketing, promotion, or any activity that could be used to influence sales or market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an individual healthcare professional, or evaluate the effectiveness of a professional pharmaceutical detailing sales force."
IMS Health and Verispan filed their legal challenge soon after the law went into effect in June 2006.
A host of pharmaceutical marketing and healthcare IT support groups filed "friend of the court" briefs on behalf of the plaintiffs, including data-miners Wolters Kluwer Health, which in 2005 purchased part of the assets of pharma data-miner NDC Health, the National Association of Chain Drugs Stores, SureScripts, a for-profit developer of e-prescribing infrastructure founded by the NACDS and the National Community Pharmacists Association; and the National Alliance for Health Information Technology and the eHealth Initiative, both not-for-profit IT booster associations.
The case went to trial in February.
According to a news statement, IMS Senior Vice President and General Counsel Robert Steinfeld, said, "We know some states are still considering legislation modeled on the New Hampshire law. This important decision clarifies that the Constitution protects the dissemination of provider-identifiable information, which is also vital to ensure patient safety and improve healthcare quality."