Yesterday, PostScript visited the John Joseph Moakley courthouse in Boston. After getting a wee bit lost, we made it safely into the U.S. Court of Appeals, which heard the appeal of a decision by the First District Court in New Hampshire last April overturning that states’ ban on the sale of prescriber data for marketing purposes.
PostScript has not minced words about the practice of data–mining (for proof, look here). As a matter of tradition, we didn’t mince much here, either.
In the case IMS inc. v Kelly Ayotte, Judges Lipez, Selya and Siler heard arguments in support of the overturned law from state counsel Laura Lombardi Esq., and Sean Flynn Esq., legal consultant for the Prescription Project, which filed an amicus brief alongside the New Hampshire Medical Society, NLARX, NPA, AARP, PPC. (See end for acronyms – it’s like a crossword.)
Counsel for the defendants, three data-mining companies that buy the information from the pharmacies and sell it to the drug companies, argued that the overturned prescriber data confidentiality law amounts to content discrimination, privileging payors who want to reduce drug costs with data while restricting sellers (pharma companies) from the same data sets.
IMS counsel argued also that the state had brought no evidence that the sale of prescriber data had led to sub-optimal prescribing. This is a sticking point. After all, you can show that NH doctors have been prescribing lots of brand name drugs, and you can show they prescribed ones that had sub-optimal effects – Vioxx, say. But it’s hard to compare that to what doctors would have prescribed if detailers had not been snooping around in their prescribing data. Would reps have used other tactics? Would those have sold less or more brand-name drugs? No one knows.
Since the influence of gifting and relation-building on prescribing behavior is well-documented, the state thinks – and we agree -- that docs would generally prescribe less brand name and more proven older drugs if detailers weren’t hanging around so much. But without another state to look to (New Hampshire was the first one to pass a data mining ban like this), the evidence is inferential, even common-sensical – but not documented yet.
The IMS counsel also warned the court that without accessing to individual prescribing records, pharmaceutical companies would have to increase their marketing force. But with the R& D pipeline tapped, generic prescriptions on the rise, and frequent news of pharma layoffs and an ongoing round of executive musical chairs, how much bigger can the sales force reasonably get before they run out of things to sell?
Attorney Flynn made rebuttal for the state, noting that if the district court's decision is allowed to stand, a healthy handful of really good laws prohibiting the release or use of consumer data would be threatened, including the Driver Privacy Protection Act, Video Privacy Protection Act, Stored Communications Act, Electronic Communications Privacy Act, and Fair Credit Reporting Act.
Judge Lipez asked why, if the New Hampshire law affects the conversation in the doctor’s office between a detailer and doctor, the plaintiffs contend the case is not about commercial speech. “They’d know a lot less about that doctor than they did before,” Lipez said. To PostScript and a lot of docs out there, that doesn’t sound half-bad.
Flynn emphasized that the law does not impinge speech but rather access – access to information created by the doctor and the patient. If there were any grounds for a speech restriction argument in this case, Flynn added, it would be that the sale of this prescriber data to salesmen and -women impairs doctors’ right not to speak.
“It’s the doctors and patients who are speaking,” Flynn said.
For more information, see the Prescription Project fact sheet on data-mining, Flynn's legal memo on the New Hampshire decision, and www.reducedrugprices.org.
acronyms: NLARX = National Legislative Association to Reduce Drug Prices; NPA = National Physicians Alliance; AARP = American Association of Retired Persons; PPC = Prescription Policy Choices