Yesterday, in a historic victory for physicians and patients, the First Circuit Court of Appeals unanimously upheld New Hampshire’s Prescription Confidentiality Act, which prohibits drug reps from using prescription information for pharmaceutical detailing.
This is a huge victory. While both Maine and Vermont have passed anti-data mining laws, industry-funded lawyers have challenged the laws on the basis that they violate the First Amendment protections on free speech. In fact, these same lawyers were able to convince a district court to strike down the New Hampshire law in April 2007, and since then, according to this article by the Associated Press, many other states have frozen their efforts to regulate this sleazy marketing practice while they wait to see how courts rule.
Now, they have their answer. Yesterday’s decision marks the first time a federal court has upheld such laws. According to Sean Flynn, a law professor who has spearheaded efforts to ban data-mining, the federal court "refused to apply the First Amendment to the trading of prescription records for marketing purposes where ‘information itself has become a commodity.’ The court explained that applying the First Amendment to such trade in prescription data 'stretches the fabric of the First Amendment beyond any rational measure.’”
You can almost hear the great clicking sound of dominos falling as the 18 other states considering anti-data mining laws get back to work on them.
Click here for an excellent fact sheet on prescription data-mining, courtesy of the Prescription Project. I have covered this issue from various perspectives here.
Let's hope that drug companies will use the millions they were spending on data-mining for something more useful to society--like research and development.