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First Circuit upholds prescription drug records restriction

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] A three-judge panel of the US Court of Appeals for the First Circuit on Tuesday upheld a New Hampshire law that prohibits the gathering of data from prescription drug records to target pharmaceutical sales to doctors. The Prescription Information Law was enacted in June 2006 and was aimed at limiting health care costs by reducing the number of brand-name prescriptions written by doctors. The law prohibited a technique used by pharmaceutical companies in which the prescription histories of doctors in the state are used to create personalized sales pitches for brand-name drugs. The New Hampshire General Court, the state's legislature, enacted the law restricting access to prescribing histories based on the belief that the practice improperly induced doctors to prescribe costly brand-name drugs in place of equally-effective but less-expensive generic medications. The First Circuit held {AP report; NYT report] Tuesday that the law did not restrict free speech, since it permissibly regulated only the conduct of data mining companies, not their speech:The challenged portions of the statute principally regulate conduct, and to the extent that the challenged portions impinge at all upon speech, that speech is of scant societal value. We say that the challenged elements of the Prescription Information Law principally regulate conduct because those provisions serve only to restrict the ability of data miners to aggregate, compile, and transfer information destined for narrowly defined commercial ends. In our view, this is a restriction on the conduct, not the speech, of the data miners. In other words, this is a situation in which information itself has become a commodity. The plaintiffs, who are in the business of harvesting, refining, and selling this commodity, ask us in essence to rule that because their product is information instead of, say, beef jerky, any regulation constitutes a restriction of speech. We think that such an interpretation stretches the fabric of the First Amendment beyond any rational measure.The opinion also stated that the law was not impermissibly vague and did not violate the Dormant Commerce Clause. One of the plaintiffs in the case, SDI Health, subsequently released a statement expressing disappointment at the decision. In 2007, the US District Court for the District of New Hampshire struck down the law. According to an IMS press release, US District Judge Paul Barbadoro found that the law "unconstitutionally restricted speech without directly serving the State's substantial interests" and that "alternatives exist that would achieve the State's interests as well as or better without restricting speech."

Full post as published by JURIST - The Paper Chase on November 19, 2008 (boomark / email).