A federal judge in Vermont rejected a challenge to a state law that blocks the use of prescriber-identifiable data for marketing. U.S. District Judge J. Garvan Murtha wrote that the prescribing information represents protected speech under the First Amendment but can be appropriately limited to advance a substantial government interest, granting deference to the Vermont Legislature’s conclusion that it has one. The decision consolidates two lawsuits, one filed by a group of data vendors and another by the Pharmaceutical Research and Manufacturers of America, which sought an injunction blocking a provision of the law compelling drug companies to pay a fee to support an “evidence-based education” program.
Murtha rejected PhRMA’s argument that drug companies would be unconstitutionally forced to fund a government-controlled message in which they had no input. The Vermont decision follows a federal appeals court opinion in 2008 upholding a similar law in New Hampshire. A federal court in Maine, meanwhile, enjoined the data-mining portions of a similar law; an appeal, however, is pending in the 1st U.S. Circuit, the same court that upheld the New Hampshire version. The three laws were challenged by data-mining companies Verispan (since acquired by SDI Health), IMS Health and Wolters Kluwer Health. In the New Hampshire case, the plaintiffs are seeking review by the U.S. Supreme Court.