Supreme Court to rule on states prohibiting use of drug prescription records for marketing

The court, reviewing a Vermont law that restricts commercial use of prescription records, will settle a split in the lower courts about whether such laws violate the First Amendment.

The 2nd U.S. Circuit Court of Appeals in New York struck down Vermont’s law, while the 1st Circuit in Boston upheld similar legislation in Maine and New Hampshire.

The named defendant, IMS Health, along with similar firms, collects data from pharmacies about the drug-prescribing practices and histories of local doctors. The records do not include information that would identify patients.

The companies say the data they collect help law enforcement and public health officials locate areas where certain illnesses are concentrated, and also to identify doctors who "overprescribe" certain drugs, including narcotics.

The manufacturers also use the information to target-market their products to doctors who show up in the data as prescribing competitors’ drugs.

Vermont seeks to restrict the use of the data for that purpose. The state contends it increases health care costs by, for instance, persuading doctors to prescribe name-brand drugs instead of generics.

So allowing manufacturers to give doctors more information and then trusting those physicians to make an informed choice is bad, because the treatment a doctor judges to be better might also cost more — a cost which the patient can either pay or decline to pay?

Profit is an excellent incentive to get people to make useful information available to the public. Neither schoolteachers nor book publishers generally do their jobs for free, nor do those who publish scholarly journals. Are all these people and the jobs they perform to be scorned because they hope to make a living at it — to earn more than their costs?

The 2nd Circuit, which said the Vermont law violated the First Amendment by restricting the transmission of factual information, appears to have this one right.

If governments want to get out of the business of regulating and tracking the use of medicines, it might be worth discussing. So long as the data exist, however, attempts to limit the use of such data to provide accurate information on the grounds it might allow someone to make a profit is not only silly, it surely would violate the Bill of Rights.