Coalition, Public Health Experts, Patient and Industry Groups Ask Supreme Court To Strike Prescription Data Use Ban

April 5, 2011 – The Coalition for Healthcare Communication joined patient groups, two former Secretaries of the Department of Health and Human Services, the U.S. Chamber of Commerce and more than 50 organizations and individuals to file one of 16 amicus curiae briefs with

the U.S. Supreme Court urging nullification of the Vermont prescription data use ban in Sorrell v. IMS Health.

This high-stakes case addresses the constitutionality of a Vermont law that bans the use of a physician’s prescribing history in medicine marketing. Vermont is one of three states – including New Hampshire and Maine – that outlaws the distribution or use for marketing purposes of information about doctors’ prescribing practices.

“This is not just about the Vermont law,” says John Kamp, executive director of the Coalition. “It’s about the First Amendment right of medical marketers to use legally collected data and data analytics to communicate with the right doctors and patients using targeted messages and media.”

The Coalition filed its amicus brief with American Business Media, The Consumer Data Industry Association, CoreLogic, The National Association of Professional Background Screeners, and Reed Elsevier Inc. In the brief, these entities urge the Supreme Court to adopt a Court of Appeals for the Second Circuit decision that invalidated the Vermont law on the ground that it violated the First Amendment by banning the voluntary exchange of truthful information on a matter of public importance.

“Although there may be ‘work arounds’ for the data targeted by this statute, many work arounds would be more costly and less precise,” said Kamp. “More importantly, if we lose, it will open the door for opponents of branded products to go after other medical data and analytics,” he said. “I am not a big proponent of domino theories, but if the Supreme Court upholds the Vermont statute, the dominoes will begin falling all across America.”

The brief by the Coalition and others told the Court that the issue to be resolved is: Does the First Amendment allow governments to ban industry use prescribing data for marketing while allowing government, managed care and others to freely use the same data to “counter market” against the use of branded drugs. Essentially the question at issue is whether the government can manipulate the “marketplace of ideas” to discourage branded drug use.

The Coalition and its co-filers argue selective bans on data use is “wrong and constitutes a dangerous threat to First Amendment values,” and that the “compilation, aggregation and distribution of the content of informational databases is entitled to First Amendment protection.” The amici conclude that the First Amendment “reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it,” the amicus brief states. “Vermont’s prohibition of the communication of truthful information flouts this fundamental principle.”

The Supreme Court will hear oral arguments in Sorrell v. IMS Health on April 26; a decision is expected by the end of June. The Coalition will continue to monitor this case and report on developments.viagra cialis online order