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Supreme Court Considers Prescription Privacy Case

Should states be allowed to impose restrictions on drug companies that use purchased private prescription information to market their products? The case of Sorrell v. IMS Health puts that question before the Supreme Court Tuesday. At a time when the health care industry is being overhauled and anxiety over rising medical costs is high, the case could potentially affect drug manufacturers, doctors, and patients who rely on prescription drugs.

When a pharmacist fills a prescription, he or she is required by law to make a record of the transaction. The name of the patient involved is stripped from the record, but not that of the prescribing doctor. Data companies, therefore, can compile electronic profiles of specific doctors — which can include information like their names, addresses and prescribing history — and sell them to prescription drug makers. Pharmaceutical companies rely on that information to effectively market drugs to doctors.

Sorrell v. IMS is rooted in “conflict between a Vermont statute that keeps this information from the drug companies and the speech clause of the first amendment,” according to Marcia Coyle of the National Law Journal.

The Vermont law, which would require consent by doctors before their information is sold to companies, claims that drug companies do not have an inherent First Amendment right to prescription information for commercial use. Vermont officials believe that the law protects doctor-patient confidentiality and will also shield patients from high health care costs. Supporters of the law aim to reduce the effectiveness of pharmaceutical companies’ marketing, which can persuade doctors to shift from generic to brand-name drugs, at more cost to the patient, and potentially the state through Medicaid costs.

The pharmaceutical industry, however, argues that the Vermont law is a restriction on speech and matters of public benefit. Companies say that the prescription data plays an important role in medical care, health care research, health policy and law enforcement. Drug makers also claim that patients actually benefit by the use of doctor prescription information, since it allows companies to efficiently provide information about the newest and most effective prescription drugs to the doctors and specialists whose patients need them most.

New Hampshire and Maine have enacted similar laws, which have been deemed constitutionally permissible by the courts. The 2nd U.S. Circuit Court of Appeals, however, struck down the Vermont law in November, asserting that because the law restricted speech, it required a heightened level of scrutiny that it could not withstand.

In Tuesday’s arguments, which will be watched closely by the medical community, “the justices will have to sort out whether this law restricts the speech of the drug companies, while Vermont claims that this is not a speech issue at all,” Coyle said.

We’ll have more on Tuesday’s Supreme Court arguments on tonight’s NewsHour. Stay tuned.

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