[Ip-health] First cir. upholds med data regulation

[Sean Flynn]

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November 18, 2008



Sean Flynn, Associate Director

Program on Information Justice and Intellectual Property

American University Washington College of Law

202-274-4157, or sflynn@wcl.americn.edu



The First Circuit Court of Appeals upheld the constitutionality of New
Hampshire's first-in-the-nation law making doctors' prescription writing
habits confidential. The ruling reversed a Federal District Court ruling
last year that the law unconstitutionally infringed on free speech.



The ruling is available at
http://www.ca1.uscourts.gov/pdf.opinions/07-1945P-01A.pdf



The court unanimously upheld the New Hampshire law. The majority found
that the act does not regulate speech, but rather regulates only the
conduct of health information companies that aggregate and sell
prescription records. The concurrence concluded that the Act does affect
speech of pharmaceutical marketers, but the regulation is nonetheless
justified by the state's overriding interest in promoting cost
containment in the pharmaceutical sector.



This is an important decision for data privacy advocates. The
ramifications of giving companies a First Amendment right to sell data
on all of our purchases, travel and activities would be staggering. The
First Circuit ruled on the side of consumer privacy, admonishing that
the First Amendment does not protect every exchange of information from
traditional social and economic regulation. It refused to apply the
First Amendment to the trading of prescription records for marketing
purposes where "information itself has become a commodity." The court
explained that applying the First Amendment to such trade in
prescription data "stretches the fabric of the First Amendment beyond
any rational measure."



The court affirmed that states have a valid interest in regulating the
use of prescription records to target marketing to doctors. The court
found that the use of such information to identify doctors who prescribe
lower cost drugs and target marketing campaigns at them has a
demonstrable impact on pharmaceutical spending that states are not
disempowered to respond to. Access to individualized prescription data
also allows companies to target gifts, consultancies and other perks to
their most favored physicians, in effect incorporating prescribers into
the commission structure of their sales forces. These practices debase
the medical profession and, the more the practices become public, break
the chain of trust between doctor and patient.





PIJIP <http://www.wcl.american.edu/pijip/>

American University, Washington College of Law



Sean Flynn, esq.
Associate Director

Program on Information Justice and IP
Washington College of Law
American University
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