First Amendment Protections for Selling Drugs?

NPR does a good job reporting on health care issues.  Recently there was a story about a case headed for the US Supreme Court, in which drug companies are claiming First Amendment protection of their right to maximize the efficiency of their efforts to market prescription drugs to doctors.

When your doctor writes a prescription and you get it filled, the fact that you were prescribed that medicine is considered Protected Health Information under federal law.  But the fact that your doctor wrote that prescription is not similarly regarded as a confidential matter.  There are "data mining" companies that pay pharmacies for information about the prescriptions doctors write.  In turn, these companies sell the information to drug companies.  The pharmaceutical manufacturers can then use the information to target their efforts in marketing their products to doctors.

Many doctors have been unaware of this.  I recently made a presentation on relations between the pharmaceutical industry and medical organizations to a group of emergency physicians at the University of Iowa.  I mentioned this issue, and few (if any) in the audience knew about it.

But the Vermont Medical Society knew about it, and they didn't like it.  They asked the state legislature to do something about it.  Vermont lawmakers decided the doctors' group was right, and they enacted a ban on this data mining.

Now the data mining companies and the drug companies have filed suit, claiming the ban interferes with their marketing efforts in a way that violates First Amendment guarantees of free expression.

A federal district court in Vermont upheld the ban.  Similar bans in Maine and New Hampshire have also been upheld.  But the US Court of Appeals for the Second Circuit overturned the ban on constitutional grounds.  Such disparate rulings by lower federal courts commonly result in appeals to the Supreme Court for ultimate resolution.  The high court has now been hearing oral arguments in the case.

I am an avid student of constitutional law, although I have had no formal training, and I find it fascinating to try to analyze the issues involved in such a case. Clearly, the ban on the mining of data and on the sale of the data to drug companies in no way interferes with their freedom of expression in promoting the merits of their products to physicians.  Rather, it hampers their efforts to target that marketing most efficiently.

Say Company A makes Drug X and markets it for treatment of Disease Z.  If the company can buy information that tells it I almost never prescribe Drug X, even though my specialty is one that would indicate I see many patients with Disease Z, the company can target me with a special effort to convince me that their product is the best choice for these patients.  Without this information, Company A is left to treat all doctors in my specialty equally as targets for their promotional activities.

It so happens that I don't meet with sales representatives, and I tend to ignore marketing brochures, so for me personally this is mostly of academic or intellectual concern.  But I am always intrigued when the profit motive causes people to try to make a case in constitutional law that a provision in the Bill of Rights protects their economic interests.

Patients prefer that their doctors make decisions about prescribing drugs based on the best scientific evidence available - not on the most efficient and effective marketing efforts that the pharmaceutical manufacturers can muster.  I am hopeful that the Supreme Court will decide, in this case, that what is best for patient care and what is constitutionally sound are in accord.