Attack on the Rx data mining law

March 16, 2007

Perspective

The Live Free or Die state is in the news again. Last year, New Hampshire became the first state in the nation to prohibit the sale of physician prescribing data for most commercial purposes. As we reported then, the law cites a number of commercial activities-advertising, marketing, promotion, among them-but its true target is the "data mining" conducted by healthcare information organizations (HIOs). These companies collect, analyze, and sell data about prescribing patterns to, among others, drugmakers.

Doctors who supported the law did so because they believe that drugmakers use the data to manipulate their behavior. The bill's sponsors said that that manipulation, in turn, leads to more costly prescribing, driving up the pharmaceutical portion of the state's Medicaid budget.

The HIO industry wasted no time in registering its objections after the governor signed the bill into law last June. Almost immediately, two national HIOs doing business in the state-IMS Health and Verispan-filed suit in federal district court to have the law overturned. In separate but identical briefs to the court, they argued, among other things, that the "prescription restraint law, as they derisively identified it (its correct title is the Prescription Confidentiality Act) violates their First Amendment rights to free speech.

If the dispute does end up turning on freedom of speech, the state, some observers believe, is likely to have the higher hurdle to clear. "The judge made it clear that the state had to show a compelling reason why suspension of freedom of speech is indicated," says FP Gary A. Sobelson, immediate past president of the New Hampshire Medical Society and one of several doctors to testify at trial on behalf of the defense.

Does the state's claim of lower prescription drug costs clear that hurdle? Some think it does.

"As a doctor and someone who studies drug delivery, I think that keeping drugs affordable-and making sure that drug prescribing is more evidenced-based and less hype-based-is more important to the welfare of the state than the right of these HIOs to sell data," says Jerry L. Avorn, professor of medicine at Harvard Medical School and author of Powerful Medicines: The Benefits, Risks, and Costs of Prescription Drugs (Knopf, 2004), which deals in part with drug marketing to doctors.

The potency of this argument remains to be seen, although whatever the court's ruling, the losing side will almost certainly appeal.

Meanwhile, lawmakers in other states-Arizona, Hawaii, Massachusetts, Missouri, Vermont, and Washington, among others-are keeping a close watch. A resounding win in New Hampshire will bolster their efforts to pass similar legislation, something the HIO industry and drugmakers will try their best to stop.