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Healthy Skepticism Library item: 18959

Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.

 

Publication type: news

Curran J
Vt. law on drug data mining ruled unconstitutional
Yahoo Finance 2010 Nov 23
http://www.guardian.co.uk/world/feedarticle/9375454


Abstract:

Appeals court rules Vt. law that restricts drug company data mining violates First Amendment


Full text:

A Vermont law that restricts companies’ use of information about the drugs doctors prescribe is unconstitutional on free speech grounds, a federal appeals court ruled Tuesday.

Three companies that gather information on drugs ordered by doctors and then sell the info to pharmaceutical manufacturers — IMS Health, SDI and Source Healthcare Analytics — had sued over the so-called data mining law. Passed in 2007, it bans the sale, transmission or use of prescriber-identifiable data for marketing a prescription drug unless the prescribing doctor consents.

A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit said the law is a restriction on commercial free speech that violates the First Amendment.

By law, Vermont pharmacies must collect information including the prescriber’s name and address; the name, dosage and quantity of the drug; the date and place the prescription is filled; and the patient’s age and gender.

At issue is what happens to that information.

The law restricts pharmacies from distributing the information. Vermont officials say drug companies were using the information as a “covert marketing tool” and believe that restricting it helps protect medical privacy, control health care costs by promoting generic drugs and improve public health.

But drug companies say the information about doctors’ prescribing patterns is key because it helps spot trends, keep tabs on the safety of new medications and study treatment outcomes.

“These types of laws do nothing to advance public health and in fact pose a risk to patients by arbitrarily delaying information on new medicine or warnings on existing medicines,” said Harvey Ashman, senior vice president and general counsel for IMS Health.

In a 2-1 ruling, the New York appeals court said the law doesn’t achieve what Vermont wants to achieve and that a more limited restriction would be better.

“The state has not demonstrated that its interests in protecting public health and containing health care costs could not be as well served by a more limited restriction on speech,” the majority opinion said.

In a dissenting opinion, Judge Debra Ann Livingston said the ruling would have “pernicious broader effects” in First Amendment law. She said she couldn’t accept the idea that data-mining operations have an inherent right to use the First Amendment as a shield against reasonable regulation.

“The transfer of data has become a burgeoning business, with those engaged in such transfers frequently having no intention of engaging in expressive or communicative conduct,” she wrote.

Vermont may appeal.

“We’re very disappointed in the outcome of the case,” said Assistant Attorney General Bridget Asay. “We have some options to seek further review. We’re starting to consider those now.”

 

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Far too large a section of the treatment of disease is to-day controlled by the big manufacturing pharmacists, who have enslaved us in a plausible pseudo-science...
The blind faith which some men have in medicines illustrates too often the greatest of all human capacities - the capacity for self deception...
Some one will say, Is this all your science has to tell us? Is this the outcome of decades of good clinical work, of patient study of the disease, of anxious trial in such good faith of so many drugs? Give us back the childlike trust of the fathers in antimony and in the lancet rather than this cold nihilism. Not at all! Let us accept the truth, however unpleasant it may be, and with the death rate staring us in the face, let us not be deceived with vain fancies...
we need a stern, iconoclastic spirit which leads, not to nihilism, but to an active skepticism - not the passive skepticism, born of despair, but the active skepticism born of a knowledge that recognizes its limitations and knows full well that only in this attitude of mind can true progress be made.
- William Osler 1909