The indispensable How Appealing blog reported this morning that the U.S. Court of Appeals for the Second Circuit, in a 2-1 decision, found that a Vermont law which prohibited the sale or use of information about doctors’ prescribing patterns violates the First Amendment. Washington Legal Foundation filed a brief in support of the petitioner in the case, IMS Health, advocating for commercial speech rights.
The Vermont law, which is similar to laws passed in other states such as Maine, does not address information about the ultimate consumer of prescription drugs – the patient. The information in which data companies like IMS Health are interested is which doctors are prescribing which drugs, information which is aggregated and deployed by pharmaceutical marketers to make their efforts more efficient and targeted. Such information use makes good sense for doctors as well, given that their time is limited and they don’t want products pitched to them in which they have no interest.
As Harvard Law Professor Laurence Tribe wrote about these laws in a 2009 WLF Legal Opinion Letter, they are
intended to prevent conversations between doctors and drug companies about the merits of different treatments — and are designed to do so by bottling up prescription-related information at its source in the pharmacies that fill the prescriptions. In other words, the state is blocking the transfer of information in order to make it harder for drug companies to locate the doctors who would be most interested in how (not by whom) the companies’ products have been used.
We’ll have more to say on the Second Circuit’s ruling once we’ve digested it, but in the meantime, congratulations to IMS Health’s counsels, Thomas Julin of Hunton & Williams LLP and Thomas Goldstein of Akin Gump Strauss Hauer & Feld LLP (and member of WLF’s Legal Policy Advisory Board).