From Steve Dubansky, MD, SVP, Medical Director, Palio
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” ~First Amendment to the constitution
The First Amendment has served as the basis of constitutional support for many complex issues since its ratification with the other 9 amendments in the Bill of Rights on September 25, 1789.
In 2007 the Vermont legislature passed a law banning the sale and use of prescriber-identifiable prescription records to market and promote drugs unless the prescriber okays use of the data. The First District Court upheld the law despite the protestations of the plaintiffs, IMS and colleagues (PhRMA included) who requested the law be held unconstitutional. Undaunted by their loss in the First District, IMS Health, PhRMA and friends asked the 2nd Circuit U.S. Court of Appeals to review the case and repeal the law. The First Amendment was the basis for their appeal.
Vermont lost the case in the 2nd District Court of Appeals when the court was insufficiently convinced by Vermont’s defense of their law, a defense that suggested:
1. The First Amendment was not the issue because their law regulated commercial activity and not free speech.
2. Even if one argued that the law interfered with free speech, it would not violate the First Amendment because it spoke to the state’s essential interest in protecting medical privacy, controlling drug costs, and promoting the public health.
The data miners and PhRMA argued that the Vermont law limited their access to prescriber-identifiable data and thus restricted their constitutional right of free speech, because the law restricted not only commercial activity but also commercial speech. My son-in-law, a bright young legal scholar, explained to me that there were legal precedents that apparently blurred for the court what seems to me to be a very clear distinction between free speech and commercial activity/commercial speech.
Vermont has now requested that the Supreme Court review the case and reinstate the law, and, in large measure because the 2 district courts differed in their decisions, the Supreme Court agreed to do review it. Vermont’s attorney general, William Sorrell, lauded the court’s decision: “Vermont doctors pressed for this law because of their concerns about privacy and because they view this data mining practice as an intrusion into the way doctors practice medicine. We look forward to defending this important law in the Supreme Court.”
I know very little about the law and next to nothing about subtle interpretations of same, but common sense tells me that this situation does not speak to the abrogation of free speech. Rather, it seems as if companies who earn a living by mining data simply wish to continue to do so. They certainly have the right to do so, but not completely unencumbered by law, and certainly not at the expense of my right to privacy. I practiced general pediatrics for 6 years and hematology-oncology for 24 more, and I didn’t learn till very late in my medical career that companies bought and sold my prescribing information. I found it wrong then, and my attitude hasn’t changed. I don’t want my prescription data known, let alone commercially available. How and what I prescribe is no one’s business except for me and my patients.
Put another way, I really mind if I’m mined. Selling prescriber data is to free speech and the First Amendment as fish are to bicycles. The Vermont law seems eminently fair, but like medicine, the law is not always clear cut and perfectly consistent. Now only the Supreme Court can decide whether a law that restricts access to information in nonpublic prescription drug records, and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing, violates the First Amendment. The Court is expected to do so in April of this year, with a decision made before the end of the court’s term in June. Despite my pessimism, well grounded by observing the almost unalloyed pro-business attitude regularly exhibited by the Roberts court, I still hold out hope that Attorney General Sorrell and the State of Vermont will be convincing in explaining why the First Amendment does not apply in Sorrell vs IMS Health.
(The attitudes expressed in this blog are those of the author and not necessarily those of Palio)
Palio is a full-spectrum global pharmaceutical and consumer advertising, marketing, and communications agency that excels in brand creation and specializes in brand strategy, product launches, global marketing, and digital and integrated media.
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