Contact:
Sharon Treat, NLARx Executive Director, 207-242-8558, info@reducedrugprices.org

SeanFiil-Flynn, NLARx Counsel, 202-294-5749, sflynn@wcl.american.edu
New Hampshire Rep. Cindy Rosenwald, 603-566-0586

A New Hampshire law preventing use of individually-identified prescriber information for drug marketing was upheld today by the First Circuit Court of Appeals in Boston. The decision also will be precedent in a lawsuit that affects a Maine law that had been initially overturned by the Federal District Court.

“I am thrilled,” said Rep. Cindy Rosenwald, sponsor of the First-in-Nation New Hampshire law. “The First Circuit decision unanimously recognized that States have the right to protect the prescriber-patient relationship and patient safety, and to try to reduce the cost of pharmaceuticals.” 

“This is a groundbreaking and important decision,” said Sharon Treat, and Maine State Representative and Executive Director of the National Legislative Association on Prescription Drug Prices (NLARx) which has championed this legislation and drafted a model bill in collaboration with the Prescription Project, based in Boston. 

NLARx joined with consumer, physician and seniors organizations including AARP, the New Hampshire Medical Society, Community Catalyst, National Physicians Alliance, and Prescription Policy Choices as a "friend of the court" in support of the State of New Hampshire, which is backing the law. The case is IMS Health Inc. v. Kelly A. Ayotte, Docket #07-1945.

“This decision lifts a cloud of doubt that has hung over the passage of similar laws in other states, Rep. Treat said. “In 2008, 12 states had introduced bills that would regulate the marketing use of prescriber information, similar to the New Hampshire law. A similar number of states had legislation introduced in 2007. Largely because of the pending litigation challenging the New Hampshire, Maine and Vermont laws, these bills were withdrawn or did not pass. Now that legislators have been given the green light in this unanimous and clear victory, we can expect that these and other states will consider resubmitting this legislation.”

Rep. Treat noted that the timing of the decision comes just when newly elected legislators are putting together their legislative agendas and pre-filing bills for the 2009 legislative session. “This is an early holiday gift,” Treat said. 

Sean Fiil-Flynn, Counsel for the public interest organizations participating as amicii in the case stated: “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.”

Attorney Fiil-Flynn added: “This is an important decision for data privacy advocates. In a small number of other cases, courts have applied the First Amendment to the regulation of consumer identification lists and other uses of information for commercial purposes. The First Circuit bucked this dangerous trend, 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 here, where “information itself has become a commodity” and explained that applying the First Amendment to such trade in prescription data “stretches the fabric of the First Amendment beyond any rational measure.”

"I am heartened to hear that the case on detailing in New Hampshire ruled on in favor of the state” stated Maine Senator and Assistant Majority Leader Lisa Marrache. “I am glad because this is an important step towards affirming our own state’s law that limits the ability of pharmaceutical or third party companies from the unauthorized use of prescribers’ prescription writing history in order to market their products for their own profit margins. Hopefully, this case will put an end to this practice and allow states to enact economic regulation on the cost of health care." Senator Marrache, a physician, was the prime sponsor of similar legislation enacted in Maine which has been under litigation in federal court in that state.

The federal government has been slow to address issues of drug industry marketing and influence on the medical profession, and that the states are in largely uncharted territory. Each of the state datamining laws enacted so far - in New Hampshire, Maine and Vermont - has been challenged in court by the industry. The unanimous appeals court decision is direct precedent for the Maine case which is awaiting appeal, and also has been handed down before the federal district court in Vermont has ruled on the law in that state.

The 148 pages of analysis exhaustively analyses the voluminous evidence amassed by New Hampshire demonstrating the negative effects on our health care system of allowing pharmaceutical marketers to use prescription record tracking to target their marketing efforts.

Access to individualized prescription data allows companies to target their marketing, gifts, consultancies and other perks to their most favored physicians, in effect incorporating prescribers into the commission structure of their sales forces. This practice debases the medical profession, and, the more the practice becomes public, breaks the chain of trust between doctor and patient.

Rep. Treat stated: "States around the country are grappling with the problem of the undue influence of drug industry marketing on the practice of medicine and the effect of this activity on public health, the integrity of the medical profession, and prescription drug costs. Addressing the practice of datamining, as New Hampshire and other states have done, is an appropriate and Constitutional policy response to a growing problem."

The National Legislative Association on Prescription Drug Prices is a nonpartisan, nonprofit organization of state legislators from across the country who advocate for lowering prescription drug costs and increasing access to affordable medicines. Legislators from the District of Columbia and all of the New England states plus Pennsylvania, New York, West Virginia, Oklahoma, New Mexico, Maryland, South Carolina, Texas, Alaska, Arizona, Colorado and Hawaii are members of NLARx. For more information on prescription drug policy and data mining, go to www.reducedrugprices.org.

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