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 the public interest. Through research, teaching, publications, events, advocacy and the provision of legal services, PIJIP promotes the interests of teachers, students, authors, artists, filmmakers, computer programmers and users, bloggers, inventors, scientists doctors, patients, workers, consumers and others.

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.

IMS v. Sorrell Brief, PDF (63 KB PDF)