Like it or not, drug makers have right to your prescribing information

June 29, 2011

The U.S. Supreme Court said that a Vermont law prohibiting sale of prescription data to drug companies interfered with the pharmaceutical industry's First Amendment right to market its products. A recent survey suggests that the decision will not come as good news to many physicians who feel as if their privacy is being invaded.

The U.S. Supreme Court may have said it is okay for physicians’ prescription data to be sold to pharmaceutical companies, but that doesn’t mean that doctors like it. In fact, the majority of respondents to a recent physician survey said they considered the practice an invasion of their privacy.

In Sorrell vs. IMS Health, the nation’s highest court said that a Vermont law prohibiting sale of prescription data to drug companies interfered with the pharmaceutical industry's First Amendment right to market its products.

IMS Health Inc. is one of several data companies who obtain information from pharmacies about physician prescribing habits and then sell it to pharmaceutical companies to help them market their products. A 2007 Vermont law prohibited both the sale of that information by data-mining companies and its use by drug companies without the consent of the prescribing doctor. In a 6-3 decision, that law was declared unconstitutional by the Supreme Court.

The web portal MDLinx recently asked 740 U.S. physicians about the practice and found that most were strongly opposed. More than 80% of physicians said that they would not proactively “opt in” to a system that collects their prescribing records, and more than 65% of physicians said they considered the practice a violation of their privacy.

While only 3% of physicians said they actually supported the practice, another 65.3% said they were against it, with the remainder saying they didn’t care. In a press release, MDLinx quoted one respondent as saying, “Pharmaceutical companies have been monitoring our prescription writing for years. The insurance companies already watch us and the government already watches us.”

In the Supreme Court’s majority opinion, Justice Anthony Kennedy wrote, “Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment,” and that the Vermont law doesn’t meet that standard.

Dissents came from Justices Stephen Breyer, Ruth Bader Ginsburg and Elena Kagan, who argued in an opinion written by Justice Breyer that, “At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,” and that, in the case of the Vermont law, “the prohibition is justified by the need to ensure unbiased sales presentations, prevent unnecessarily high drug costs, and protect the privacy of prescribing physicians.”

Privacy is the key issue, according to one respondent to the MDLinx survey, who said, “In a small town, especially with patients who have a rare condition, it would be easy to find out what medication which patients are taking. I only have one patient with multiple sclerosis; her meds would be easy to find out.”

Go back to the current issue of eConsult.