Justices bar Vermont’s prescription privacy law

May endanger similar Mass. legislation

By Tracy Jan
Globe Staff / June 24, 2011

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WASHINGTON — The Supreme Court yesterday struck down a Vermont law barring the sale of prescription drug records for marketing purposes, potentially derailing an effort by Massachusetts lawmakers to enact a similar patient privacy law.

The court, in a 6-to-3 ruling, said Vermont violated the free speech rights of drug manufacturers by forbidding pharmacies from selling doctors’ prescription information to them yet allowing the data to be sold for other purposes, such as research.

The ruling was a victory for pharmaceutical companies, which buy the data to uncover prescription patterns so they can better market their drugs to doctors. But it dampens the hope of physician groups, consumer health advocacy organizations, and some Massachusetts legislators of passing the state’s own prescription privacy bill.

“I’m not so sure that a Massachusetts law would have much viability now,’’ said Dr. Lynda Young, president of the Massachusetts Medical Society. “We consider the sale of prescription data commercial activity, not free speech. It is an intrusion into the physician-patient relationship.’’

Two state senators, Mark Montigny from New Bedford and Richard Moore from Uxbridge, both Democrats, have repeatedly filed legislation to stop the commercial use of prescription data. They also expressed disappointment in the ruling but said it was not shocking given what they called a conservative, corporate leaning of the Supreme Court.

The decision also jeopardizes similar measures in Maine and New Hampshire. Legislators and other supporters of the laws see them as both protecting the privacy of patients and providing a tool to bring down medical costs, since they indirectly benefit makers of cheaper generic drugs.

Montigny, a founder and past president of the National Legislative Association on Prescription Drug Prices, said he and colleagues will decide how to proceed after attorneys have had an opportunity to digest the 53-page decision and examine whether they can rewrite the bill to satisfy the court’s concerns.

Leaders of pharmaceutical trade organizations praised the ruling, saying that access to doctors’ prescribing history helps drug companies educate physicians about new risks of particular medicines as well as newly approved uses.

“Information can most effectively be communicated if companies can determine which providers are prescribing which medicines,’’ said Josephine Martin, executive vice president of Pharmaceutical Research and Manufacturers of America, in a statement. “In the end, we want to make certain that doctors have the information they need to safely and effectively treat their patients.’’

Pharmacies collect information about prescriptions that they fill, including the names of patients and doctors, dosage, patient’s age, gender, and drug history. They sell the information, with patients’ names encrypted so companies cannot see them, to data-mining firms such as IMS Health, one of the companies that sued the state of Vermont. The companies compile each doctor’s prescribing history for each patient and sell the information to pharmaceutical companies, which use the data to devise plans on how best to sell drugs to individual doctors.

“These solicitations are not intended to communicate evidence-based information to doctors; they are intended to sell expensive drugs,’’ wrote the editors of the New England Journal of Medicine in an editorial last month.

The 2007 Vermont law forbade the sale of information about doctors’ prescribing records without their consent. Justice Anthony Kennedy, in his majority opinion, wrote that the law violates the free speech rights of the data-mining and pharmaceutical companies.

“Fear that speech might persuade provides no lawful basis for quieting it,’’ Kennedy wrote. “Vermont may be displeased that detailers with prescriber-identifying information are effective in promoting brand-name drugs, but the state may not burden protected expression in order to tilt public debate in a preferred direction.’’

In dissent, Justice Stephen Breyer, writing on behalf of Elena Kagan and Ruth Bader Ginsburg, said the Vermont statute is a lawful effort to regulate a commercial enterprise and it meets the First Amendment standard the court has previously applied when the government sought to regulate commercial speech.

Tracy Jan can be reached at

Other Supreme Court decisions

Expert witnesses: In a 5-4 decision, justices ruled that the lab analyst who testifies at a criminal trial must be the one who performed the lab tests in question, the latest decision bolstering the constitutional requirement that defendants be able to confront witnesses against them.

Generic drugs: By a 5-4 vote, the court said generic drug makers have more protection than their brand-name counterparts against lawsuits over their failure to warn consumers of the possible side effects of their products.

Workers compensation: The justices ruled in favor of a railroad worker who sued his employer over injuries that he had suffered while on the job, a 5-4 decision about how closely tied the company’s actions must be to the employee’s injury.

Sentencing: The court, split 5-4 again, said a man who pleaded guilty to crack cocaine possession and a specific prison term could try to have his sentence reduced to take advantage of changes put in place by the US Sentencing Commission.

Anna Nicole Smith: In another 5-4 outcome, justices ruled against the estate of the former Playboy model (pictured above) in its quest to capture some of the $1.6 billion estate left by her late Texas billionaire husband.