[Ip-health] PIJIP report NH data privacy law

[Sean Flynn]

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PIJIP releases report defending constitutionality of New Hampshire
Prescription Privacy Act:  Report follows lawsuits filed in Vermont and
Maine last week.



New Hampshire's law forbidding the selling of prescriber-identified
prescription records to drug marketers is constitutional and supported
by good public policy justifications, according a report released by the
Program on Information Justice and Intellectual Property (PIJIP) at
American University Washington College of Law.



"Access to individualized prescription data allows companies to
incorporate prescribers into the commission structure of their sales
forces.  This practice debases the medical profession, and, the more the
practice becomes public, breaks the chain of trust between doctor and
patient," said Flynn.



The report responds to a U.S. District Court ruling that the New
Hampshire Prescription Privacy Act unconstitutionally threatens the
"commercial speech" rights of pharmaceutical companies.  That decision
is currently under appeal in the First Circuit.



"There is no commercial free speech right to trade in prescriber
identities for purely commercial marketing purposes," Professor Flynn
explained.  "The commercial speech doctrine protects the right of
companies to advertise to the public.  This is not public advertising,
it is private surveillance for commercial gain."



The report documents the lack of a First Amendment right for marketers
to have access to any identifying data they want to guide their efforts.
"If the New Hampshire court's decision were allowed to stand," Flynn
explained, "a massive amount of legislation at the state and federal
level safeguarding consumer and citizen information from commercial
marketing uses would be called into question - including do not call
lists and other laws protecting the privacy of internet transactions,
video rentals, credit card information, DMV records, and other
identifying information that marketers would like to use to target their
marketing."



Last week, similar prescription-information protection laws were
challenged in Maine and Vermont by IMS Health Wolters Kluwer health and
Verispan LLC.



"From a legal perspective, these companies have little ground to stand
on, and their claim that keeping this prescriber data saleable improves
health care is nothing more than a thinly-veiled effort to protect their
profit line," said Rob Restuccia, director of the Prescription Project,
a consumer watchdog which commissioned the report. "Contrary to what
these corporations contend, the Vermont and Maine laws do nothing to
hinder important health care research or patient care," Restuccia added.




The Program on Information Justice and Intellectual Property at the
American University Washington College of Law is one of the only
nationally recognized programs in the country with an explicit focus on
the public interest in information and intellectual property laws.
Through research, teaching, publications, events, advocacy, and the
provision of legal and consulting services, PIJIP works to promote
information justice for those affected by information laws: teachers,
students, authors, artists, filmmakers, computer programmers and users,
bloggers, inventors, scientists, doctors, patients, workers, and others.



The report released today can be found at www.pijip.org
<http://www.pijip.org/>  or on the Prescription Project website,
www.prescriptionproject.org <http://www.prescriptionproject.org/> .



Contact: Sean Flynn

202-274-4157 or 4442

202-294-5749 (cell)

sflynn@wcl.american.edu