The pharmaceutical industry won a major victory on June 23 when the U.S. Supreme Court struck down a Vermont law that prohibited the sale of information about doctors' prescribing habits to drug companies. In a 6-3 decision, the court ruled the law violated the industry's First Amendment free speech rights.
Vermont law meant to change drug maker marketing practice
One way drug makers market their products is by sending sales reps, called "detailers" to doctors' offices to provide free samples and information about new medications. To hone their marketing tactics, detailers rely on information gathered by data mining companies showing which medications particular doctors prescribe and how frequently they prescribe them. Patients are not identified in the data.
A 2007 Vermont law effectively banned drug marketers from using doctors' prescription data without their consent. Concerned about rising health care costs, state lawmakers hoped the law would encourage the use of cheaper generic drugs. Insurance companies also favor the use of generic drugs because they have longer safety records and are less expensive than the newest brand-name prescription medications. Data companies, such as IMF Health Inc., sued.
"Vermont may be displeased that detailers who use prescriber-identifying information are effective in promoting brand-name drugs. The state can express that view through its own speech," Justice Anthony Kennedy wrote in the majority opinion. "But a state's failure to persuade does not allow it to hamstring the opposition. The state may not burden the speech of others in order to tilt public debate in a preferred direction."
Pharmaceutical industry says the decision is good for research and consumers
The decision is a victory for patients and future drug research and development, the Pharmaceutical Research and Manufacturers of America said.
"The use of prescribing history is especially important as America's biopharmaceutical research companies discover and develop new medicines for rare diseases and then convey information about those medicines to providers who are treating small patient populations, where new and timely information about these medicines is especially important," PhRMA Executive Vice President Josephine Martin said in a media statement.
The American Medical Association (AMA) opposes the use of doctors' prescription data without their consent. The association created a program that lets physicians "opt out" of disclosure, while still allowing their data to be available for academic and government research.
"While the AMA supports the appropriate disclosure of prescriber data, the AMA firmly believes that every physician has the unequivocal right to decide whether his or her individual prescribing data is shielded from pharmaceutical detailers," the association said in a statement about the Supreme Court decision.