On Tuesday, U.S. Supreme Court justices questioned the constitutionality of Vermont's prescription confidentiality law, which limits the use of physicians' drug prescribing records by pharmaceutical marketers, the AP/San Francisco Chronicle reports (Sherman, AP/San Francisco Chronicle, 4/26).
Pharmacies are required by law to collect and maintain files about each prescription they fill and then can sell that information -- including the prescribing doctor's name and address, and the amount of drug prescribed -- to data collection firms. Patient information is not included in the data.
The data mining firms then sell that information to drugmakers, which use it to market products to doctors.
A Vermont law requires doctors to grant consent before their prescribing information is sold and used for marketing.
Proponents of the law argue that it correctly prevents the commercial use of private health treatment decisions and protects physician privacy. Opponents believe it infringes upon freedom of speech protections in the First Amendment (iHealthBeat, 4/25).
The Vermont law permits other uses of the data, including by law enforcement, insurance companies and journalists. Drug companies also can continue to market directly to physicians but cannot use specific prescribing information to do so (Liptak, New York Times, 4/26).
Three data collection firms -- including IMS Health and the Pharmaceutical Research and Manufacturers of America -- challenged the law.
A federal district court in Vermont initially upheld the statute, but an appellate court reversed the decision in November 2010. Vermont Attorney General William Sorrell (D) later petitioned the Supreme Court (iHealthBeat, 4/25).
Justices Weigh In
During arguments on the law, some justices indicated that the law is troubling because it appears to restrict brand-name drugmakers while sparing the state government, insurers or others that might favor cheaper generics (AP/San Francisco Chronicle, 4/26).
In developing the law, Vermont's Legislature said there is a "massive imbalance in information presented to doctors" and "the marketplace for ideas on medicine safety and effectiveness is frequently one-sided."
Some justices suggested that the point of the law was to protect doctors from hearing marketing pitches for more expensive drugs.
Chief Justice John Roberts said, "You want to lower your health care costs, not by direct regulation, but by restricting the flow of information to the doctors. To use a pejorative word, [the state is] censoring what [doctors] can hear to make sure they don't have full information."
Justice Ruth Bader Ginsburg noted that Vermont "is interested in promoting the sale of generic drugs and correspondingly to reduce the sale of brand-name drugs." However, she added, "You can't lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better" (New York Times, 4/26).
Justice Antonin Scalia said the purpose of the law is to make the marketing practices of pharmaceutical companies "less effective."
Officials Defend Law
Vermont Assistant Attorney General Bridget Asay responded that "the purpose of the statute is to let doctors decide whether sales representatives will have access to this inside information" on the prescribing habits of physicians.
Asay added, "The issue in this case is whether [the drug companies'] right trumps the right of the doctor" (Totenberg, "All Things Considered," NPR, 4/26).
Edwin Kneedler -- deputy solicitor general -- said the law is "very much like a 'do not call' statute or a 'do not mail' statute, in which people have the right to say: Do not contact me for commercial information" (Bravin, Wall Street Journal, 4/27).
A ruling in the case is expected in June (Vicini, Reuters, 4/26).