In a victory for pharmaceutical and data-mining companies, the U.S. Supreme Court has struck down a Vermont statute that sought to outlaw the practice of pharmacies selling information to drugmakers about doctors' prescribing habits.
Supreme Court strikes down Vt. data-mining regulation
In a 6-3 decision (PDF) Thursday, the high court ruled that Vermont's law violated constitutional protections on free speech even though lawmakers drafted it with the goal of preventing pharmaceutical companies from using direct marketing to convince doctors to prescribe more-costly drugs to patients.
"While Vermont's goals of lowering the costs of medical services and promoting public health may be proper, (the contested law) does not advance them in a permissible way," Justice Anthony Kennedy wrote for the majority.
Across the country, pharmacies sell so-called prescriber-identifying information to drug companies, who then hire data-mining firms to scour the data for the names of physicians who should be targeted for direct sales pitches.
Vermont's law sought to prohibit pharmacies from selling the information to drug companies for marketing purposes and to prevent data "detailers" from using the information to sell more drugs. However, the law continued to let healthcare researchers buy the information for research purposes.
The majority ruled that limiting the sale of the information and its use by marketers and drug firms inappropriately limited free-speech rights on the grounds that Vermont's lawmakers disagreed with the content of the speech.
"If pharmaceutical marketing affects treatment decisions, it can do so only because it is persuasive," the majority opinion says. "Fear that speech might persuade provides no lawful basis for quieting it."
In April, three top editors at the New England Journal of Medicine came out strongly in favor of laws such as Vermont's.
"As medical journal editors committed to the open communication of medical knowledge, we are strong proponents of First Amendment protection for speakers who attempt to communicate important evidence-based health information or advocate for patients' and physicians' rights," they said, adding, "This undesirable practice is nothing more than commercial conduct—not speech—and it is not in the best interest of the health of the American people."
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