In an earlier posting (4-29-11) I wrote about the Supreme Court challenge to the Vermont law banning the sale of physician prescribing data to pharmaceutical companies. Now the Supreme Court has issued a 6-3 decision that is clearly incorrect.
[In case you didn't know, the Supreme Court has the authority to issue the ultimate interpretation of the US Constitution and the laws of this nation. I, however, retain the final authority to declare the high court's opinions to be in error. If this surprises you, note the name of the blog.]
On December 15, 1791 the Bill of Rights was ratified by Virginia, and the first ten amendments formally became part of the US Constitution. December 15 is my birthday (no, not in 1791), and each year I have thought of the Bill of Rights as an extra birthday present. Now the US Supreme Court has ruined than annual celebration for me.
What does the First Amendment say, exactly? "Congress shall make no law ... abridging the freedom of speech...." Our Founding Fathers included those words in the First Amendment to protect political speech, and especially political speech that is unpopular or that the government might find objectionable.
If you have not been spending your life hiding under a rock, you know the Supreme Court has found the First Amendment to protect other kinds of speech, including those that might be offensive by virtue of being obscene, and the Court has established a variety of "tests" that can be applied to determine whether speech is protected. So one cannot yell "Fire!" in a crowded theatre (unless there really is a fire), and there are restrictions on advocating the forcible overthrow of the government, and communities may ban material of a sexual nature that is obscene by community standards and lacks serious literary, artistic, political, or scientific value.
What about commercial speech? Yes, First Amendment protections have been extended here, as well, and so commercial enterprises have wide latitude in advertising, so long as they don't cross over into that which is false, misleading, or fraudulent.
In Sorrell vs IMS Health the Court said the Vermont law unconstitutionally interfered with commercial speech. As previously noted here, however, Vermont did no such thing. Rather than interfering with the pharmaceutical firms' right to commercial expression, the law prevented data mining companies from purchasing information from pharmacies about doctors' prescribing, packaging the data (with patient identification removed), and selling it to drug companies to be used to make their marketing efforts maximally efficient in targeting physicians.
This is Big Pharma as Big Brother, aided and abetted by the Supremes. Physicians should be outraged.
If you share my sense of outrage, I have three recommendations:
1. Never meet with drug company marketing representatives. This one is easy. If you don't want to waste your time being handed marketing materials, time that you could be spending reading readily available sources of unbiased information about pharmacotherapeutics, you already follow this advice.
2. Never prescribe a brand-name drug if there is a generic that will do the job satisfactorily. There are so many reasons to follow this one that I think I need not elaborate.
3. This is one we should work on collectively: let us find out which pharmaceutical companies buy the data about our prescribing practices and assiduously avoid prescribing their products whenever possible.
This commercial enterprise is invasive of privacy and intrusive upon the doctor-patient relationship. The government requires pharmacies to collect and maintain a database of who is prescribing what for whom. The existence of that database can serve a variety of public interests. It is astonishing that the Supreme Court should find exploitation of that database for commercial purposes to be protected by the First Amendment. Astonishing, misguided, inexcusable ... and stupid. It is time for individual physicians and medical professional organizations to stand up to Big Pharma and say no.
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