On Thursday, the U.S. Supreme Court overturned a Vermont law that sought to limit the practice of selling information about physicians’ prescribing habits for marketing purposes, the AP/Burlington Free Press reports.
The Vermont law also was aimed at increasing the use of generic drugs (Sherman, AP/Burlington Free Press, 6/23).
In a 6-3 ruling, the court said that the law placed an unconstitutional restraint on the free-speech rights of drugmakers (Kendall, Wall Street Journal, 6/23).
The ruling might have implications for similar laws in Maine and New Hampshire (AP/Burlington Free Press, 6/23).
By law, pharmacies are required to collect and maintain files on each prescription filled. That information -- including the prescribing doctor's name and address, and the amount of drug prescribed -- can be sold to data collection firms. Patient data are not included in the sale.
The firms then sell that data to drugmakers that market products to physicians.
The Vermont law required doctors to grant consent before their prescribing information is sold and used for marketing.
Proponents of the law argue that it correctly prevented the commercial use of private health treatment decisions and protected physician privacy. Opponents said it infringed upon freedom of speech protections in the First Amendment.
Three data collection firms -- including IMS Health and the Pharmaceutical Research and Manufacturers of America -- challenged the law (iHealthBeat, 4/27).
Majority Opinion Details
The Supreme Court ruled the Vermont law violated constitutional free-speech rights, even though the statute was drafted to prevent drug companies from using direct marketing to persuade physicians to prescribe brand-name drugs, Modern Healthcare reports.
According to the ruling, the Vermont law inappropriately limited free-speech rights on the grounds that Vermont lawmakers disagreed with the content of the speech.
According to the majority opinion -- written by Justice Anthony Kennedy -- "Fear that speech might persuade provides no lawful basis for quieting it."
The majority opinion added, "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" (Carlson, Modern Healthcare, 6/23).
Kennedy continued, "The state may not burden the speech of others in order to tilt public debate in a preferred direction," especially "in the fields of medicine and public health, where information can save lives."
Dissenting Opinion Details
Writing for the dissenting opinion, Justice Stephen Breyer argued that the majority placed too much emphasis on commercial speech and rejected concerns about public health and rising medical costs.
Breyer wrote, "The speech-related consequences here are indirect, incidental and entirely commercial" (Biskupic, USA Today, 6/23).
On Thursday, Vermont Public Radio reported on the Supreme Court's decision to overturn Vermont's prescription drug data mining law (Bodette, Vermont Public Radio, 6/23).