The Maine law allows physicians to opt out of having their prescriptions records sold or exchanged and tracked for marketing drugs to them. Several intelligence companies sued, claiming that the law infringes on their constitutionally protected rights of free speech and that it violated the dormant commerce clause of the Constitution that reserves to the federal government the right to regulate interstate commerce.
The appeals court rejected the companies' constitutional arguments. In November 2008, the same court upheld a similar law from New Hampshire. Vermont, too, has sought to regulate the mining of prescription data.
Legal action seeking to overturn the Maine law was brought by IMS Health of Norwalk, Conn.; Verispan, which was later acquired by Pennsylvania-based SDI; and Source Healthcare Analytic., a subsidiary of Philadelphia-based Wolters Kluwer Health.
The appeals court found that Maine and New Hampshire had sufficiently "adduced evidence of the impact of detailing generally and presented anecdotal evidence strongly indicating that sales pitches based on specific prescribing patterns have a particularly persuasive impact on drug choice."
The court not only recognized its decision most likely would not be final but also appeared to encourage Maine to do its homework and the U.S. Supreme Court to accept an appeal.
"It will be important going forward for the state to try to measure the cost-containment effect of its initiative, and it is possible that this ongoing assessment will indicate that the measure is not as effective as the State had hoped," the panel wrote. That said, "Without a doubt, the states must have flexibility to experiment with measures that will help them address the serious problem of spiraling drug costs."
The panel continued: "At the same time, the restriction of speech based on its content is a serious constitutional matter. The tension between those principles in laws such as those enacted in New Hampshire, Maine and Vermont presents a challenge to the Supreme Court's commercial speech jurisprudence that warrants the Court's attention and guidance."
Plaintiffs argued that the law "chills their commercial free speech," Maine Attorney General Janet Mills said, adding, "All our law does is protect the privacy of doctors who prescribe medications."
Tom Julin, who represented the companies, said they won't decide whether to appeal until after the Second U.S. Circuit Court of Appeals rules on a similar law in Vermont. That decision is expected in a matter of days, he said.
The Associated Press contributed to this story.