April 27th, 2011
Justices Question Drug-Sales Law
The Wall Street Journal
Supreme Court justices Tuesday sharply questioned Vermont’s effort to restrict pharmaceutical marketers from obtaining data on doctors’ prescribing habits.
The 2007 state law, passed at the Vermont Medical Society’s behest, aims to blunt a powerful marketing tool and a pharmacy revenue stream made possible through computer data-mining. Pharmacies sell prescription records, including data on which drugs each doctor prescribes, to aggregators that assemble doctor profiles and sell them to pharmaceutical companies.
Those companies use the information to tailor sales pitches to individual doctors, generally pushing higher-priced branded drugs over lower-cost generics.
Maine and New Hampshire have adopted laws similar to Vermont’s, and lower courts have split on their constitutionality.
The Vermont law prohibits using the doctor-prescribing information for marketing unless doctors check a box on their annual license forms consenting to such use. The law cites the state’s interest in “protecting the privacy of prescribers and prescribing information, and to ensure costs are contained” in health care.
Data-mining companies and the drug companies’ trade group, Pharmaceutical Research and Manufacturers of America, contend that a restriction singling out marketing—but not other purposes, such as research—violates their free-speech rights. At Tuesday’s arguments, conservative justices seemed inclined to agree.
Chief Justice John Roberts said that because the state couldn’t order doctors to prescribe generics, it apparently sought to undermine brand-name competitors “by censoring what [doctors] can hear to make sure they don’t have full information, so they will do what you want them to do when it comes to prescribing drugs.”
Bridget Asay, a Vermont assistant attorney general, said the law put no limits on what drug salesmen could say, but rather kept them from compiling detailed information about each physician’s prescribing practices “that the pharmaceutical manufacturers would like to use to inform their advertising.”
“You are making it more difficult for them to speak by restricting access to information that would enable their speech to be most effective,” responded Justice Antonin Scalia.