April 20th, 2011
CT Drug Data Mining Firm Faces Free Speech Test
New Haven Independent
Two years ago, on an unseasonably warm April day, a coalition of consumer health advocates, union members, doctors, medical students, and the AARP converged on the State Capitol in Hartford. They had come from throughout the Northeast to urge legislators to pass, among other measures, a bill that would prevent information about doctors’ prescribing habits from being sold and used for commercial means.
For years, pharmacies have sold electronic prescription records, with patients’ names encrypted, to medical data providers. These companies in turn sell them to pharmaceutical firms, which use them as a potent tool for marketing drugs to doctors. Among the world’s leading data providers—sometimes known as “data miners”—is Norwalk-based IMS Health, Inc.
With doctors’ identifying information and prescribing patterns in hand, drug detailers can precisely tailor their pitch and efficiently drive sales. Data mining also drives up health care costs, according to patient advocates and state officials, and many were looking to legislation to set things right.
But around the country, a cloud of legal uncertainty had stalled data mining bills in their tracks. Laws enacted in New Hampshire, Maine, and Vermont had been promptly challenged, and judicial decisions were still unfolding. And what had started as a consumer protection matter had grown into a question of First Amendment rights.
According to the groups challenging the laws, the data mining companies and PhRMA, a drug industry trade group based on Washington, D.C., restrictions on the use of prescriber data violate their Constitutional right to free speech.
“It was unclear at the time how things would turn out judicially for those laws,” said Rep. Elizabeth Ritter, who as Public Health Committee co-chair had fought for Connecticut’s data mining bill and watched it drop off the calendar at the end of the 2009 legislative session. When the constitutionality of a statute is in question, she added, “states tend to wait for direction from the courts.”
Their wait may soon be over. On April 26 the Supreme Court will hear arguments in Sorrell v. IMS Health, Inc. et. al, on the constitutionality of Vermont’s data mining law. A decision is expected in June.