A federal appeals court has upheld a New Hampshire law that aims to block the use of data on physicians and other clinicians prescribing patterns for drug-marketing purposes.
The decision by the 1st Circuit Court of Appeals in Boston, which overturns a trial court ruling, also will establish a legal precedent in a lawsuit by data miners and the pharmaceutical industry they work for in Maine. There a similar law was overturned by a federal court.
It will not have as strong an influence on a third such law in Vermont, which also is tied up in federal court there, because it is in a different federal circuit, according to Democratic Maine State Rep. Sharon Treat, who serves as executive director of the National Legislative Association on Prescription Drug Prices, a nonpartisan organization of state legislators looking to lower prescription drug prices.
The New Hampshire law is the broadest of the three. It says 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 patients insurance provider or the agent of either; healthcare research; or as otherwise provided by law.
The New Hampshire law also defines commercial purposes as 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.
Plaintiffs in the New Hampshire case were data-miners IMS Health and Verispan, which was subsequently sold to privately held data-miner SDI. Briefs in support of the plaintiffs position were filed by the eHealth Initiative, the National Alliance for Health Information Technology, the National Association of Chain Drug Stores, SureScripts (now SureScripts-RxHub) and Wolters Kluwer Health. The plaintiffs argued that the state laws infringed their free speech rights.
According to Treat, the three appeals judges disagreed. Two of them said it isnt even speech and one of them said it is speech, but youre entitled to regulate it.
Treat said the trial court defeat in the New Hampshire case had a chilling effect on state legislators across the country as they wrestled with whether to file bills to curb drug industry marketing practices.
Now, she said, I think there is going to be a real surge of legislation on this subject.
In a joint statement, IMS Health and SDI said they are disappointed with the appeals court decision and are evaluating potential next steps. -- by Joseph Conn
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