[Ip-health] Consumers defend Vt prescription privacy law

[Sean Flynn]

http://www.wcl.american.edu/pijip/go/news/consumer-groups-defend-vermont
-prescription-data-privacy-law

Brief filed by American University Law Professor, on behalf of AARP and
other groups, defends the Vermont Prescription Data Privacy Law

Contact: Sean Flynn: 202.274.4175;
Cell: 202.494.5749; sflynn@wcl.american.edu
WCL Office of Public Relations, 202.274.4279.

Washington, D.C. (June 23, 2008) - Vermont's law restricting the sale of
prescription drug information that identifies prescribers and patients
for commercial marketing purposes does not restrict free speech and
serves substantial governmental interests, according to a brief to be
filed today by an American University Washington College of Law
professor on behalf of AARP and organizations representing physicians,
state legislatures, consumers and public policy advocates.

According to Professor Sean Flynn:

    "This case turns on a key distinction between commercial speech and
consumer surveillance.  Only the former is protected by the First
Amendment.  The commercial speech doctrine serves consumer interests in
being fully informed of products and services on the market by providing
limited protection to advertisements and other speech to consumers
proposing a commercial transaction.  Pharmaceutical companies engage in
commercial speech when they advertise their products through media and
in-person sales calls to doctors.  The commercial speech doctrine does
not extend protection to use of information by private firms that does
not communicate with potential buyers.  The plaintiffs are not
communicating with potential buyers when they monitor the prescribing
practices of physicians, and therefore this practice is not accorded
protection under the First Amendment.

    Indeed, the First Amendment calculus weighs strongly on the other
side - of protecting the autonomy right of individuals to decide when to
speak and to whom.  Vermont's law provides a mechanism for prescribers
to choose whether to share their prescribing information with
pharmaceutical marketers and therefore serves rather than limits
important First Amendment interests.

    Even if the trade in prescription records was deemed to be speech,
there are overwhelming societal justifications for its regulation.  When
governments require the disclosure of personally identifying
information, such as that required on prescription records, privacy
interests demand that governments ensure that the information is
safeguarded from unwarranted disclosure.  In addition, an abundance of
social science evidence demonstrates that undue influence of
pharmaceutical marketing over the prescribing choices of physicians and
other health professionals compromises a central value of our health
system - that medical decisions be based on evidence, not on personal
relationships, marketing influence or the hope for pecuniary reward.
Permitting pharmaceutical marketers to track prescribing choices and use
that information to tailor commercial messages and target gifts and
enticements exaggerates undue influence of pharmaceutical companies in
our health system that raises health care costs, promotes irrational
drug selection, threatens professional integrity, compromises patient
privacy and increases the prevalence of harassing marketing practices.
States have an overriding interest in combating these social ills."

Vermont joined state legislators in New Hampshire and Maine in banning
certain uses of prescription information to target marketing to doctors
and other prescribers; each state has since been sued by the
pharmaceutical industry claiming that it has a First Amendment protected
right to access and use prescription records to target marketing to
doctors.

Information from prescription records is used by pharmaceutical
companies to track prescribing choices and use that information to
tailor commercial messages and target gifts and enticements to
prescribers to use favored medicines.  The most favored prescribers can
earn hundreds of thousands of dollars a year in "educational,"
"consulting" and other fees from pharmaceutical companies.  Such
marketing has had dramatic influences on the prescribing choices of
physicians.  According to studies cited in the brief:

    * Using highly-marketed branded medicines for high blood pressure,
instead of less expensive generic therapies rated as more effective by
national treatment guidelines, increased U.S. health costs by $3 billion
per year.

    * Approximately forty percent of Pennsylvania Medicare patients on
antihypertensive therapy were being prescribed medication at odds with
clinical guidelines at a cost of $11.2 million per year.

    * Nearly a third of the five-fold increase in U.S. spending on drugs
over the last decade can be attributed to shifts to more expensive
medication, which are often no better than older cheaper medications but
which are heavily marketed to doctors.

The Program on Information Justice and Intellectual Property as American
University Washington College of Law is guided by an explicit focus on
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To arrange for an interview or for other media assistance, contact Sean
Flynn, associate director of the Program on Information Justice and
Intellectual Property, 202.274.4157; Cell: 202.494.5749;
sflynn@wcl.american.edu; or contact Diane Bickel in the Office of Public
Relations, 202.274.4276.