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U.S. Supreme Court to Review Prescription Privacy Laws

Posted Jan 19 2011 12:00am

The days of the "detailing" of physicians by sales personnel from the pharmacy companies are numbered (see: How E-Detailing May Lead to Greater Knowledge by Physicians about Drugs ; E-Sampling: Another Blow to the Future of Pharma Sales Reps ). Nevertheless, an important case is now before the U.S. Supreme Court relating to access by pharmacy reps of the prescribing history of the physicians whom they call on (see: Prescription Privacy Laws Get U.S. High Court Scrutiny ). Below is an excerpt from the story:

The U.S. Supreme Court accepted a case that pits medical privacy interests against speech rights, agreeing to consider whether states can limit how drugmakers use data about the prescription-writing practices of doctors. The justices ...will review a Vermont law being challenged by a pharmaceutical industry trade group and three “data-mining” companies that help drugmakers target individual doctors with sales pitches. The 2007 Vermont law, struck down by a federal appeals court, bars use of prescription information for marketing without the doctor’s consent. The case gives the high court a chance to shape the burgeoning debate over the extent of privacy rights in the digital age. Vermont is one of three New England states that restrict the use of prescription records for marketing, and similar legislation has been introduced in two dozen other states, according to Vermont’s appeal....Opponents of the law joined Vermont in urging the Supreme Court to hear the appeal and clear up lower court disagreement. The Pharmaceutical Research and Manufacturers of America, which represents the drug industry, is banding together with data- mining companies including IMS Health... to challenge the measure (see: IMS Provides Access to Physician Prescription Information ). The trade group said the law “bans the speech of one set of disfavored participants in the marketplace of ideas, pharmaceutical companies.” Data-mining units of SDI Health Holdings... and Wolters Kluwer...are also challenging the law. IMS is a unit of Healthcare Technology Holdings Inc. The Vermont law targets “detailing,” the industry practice of one-on-one marketing to doctors to persuade them to prescribe particular drugs. Pharmaceutical companies spend more than $8 billion a year on detailing, according to trial testimony in the case. The data-mining companies buy the prescription information from pharmacies, which are required by state law to collect information about the types of drugs and dosages prescribed by individual doctors. The data-mining companies package the data for sale to drug companies.

I am a strong advocate for free speech. My normal instincts would be to come down on this side in the case. However, many of the the various marketing schemes of Big Pharma in the past have been unscrupulous (see: Rigged Depression Survey on the Web Steers Readers to Lilly's Cymbalta ; Merck Creates Phony Peer-Reviewed Medical Journal to Dupe Physicians ). A small voice in my head keeps telling me that these companies should not have access to a physician's prescription-writing history. However, let's step back and ask a very important question: Why would a physician really care if a drug company rep had in his or her possession the sales volume for that office for a particular drug? Putting the question another way, what pressure could be brought to bear by the company on a physician if he or she did not generate sufficient business for it.

In answering this question myself, I can think of three scenarios and they all involve money. The first, and one that has largely disappeared, is that the drug companies offer all-expenses-paid junkets to resorts to physicians in order to curry favor with them. The second is that the company offers lucrative speaking or authoring fees to some physicians, often to promote off-label use of drugs (see: Which Physicians Are Fronting for the Medical Ghost-Writers? ; Medical Schools Share Some Blame in Scandals Involving Pharma Payments to Faculty ). These latter payments are diminishing due to the fact that the drug companies are now being forced to disclose yearly payments to physicians. Finally, some physicians, particularly oncologists, earn a markup for dispensing certain drugs such as chemotherapeutic agents. This profit margin can be in the form of a discount from the company on the purchase price of the drug that varies according to the sales volume by the physician's practice (see: The Oncology Concession Under Attack by Health Insurance CompaniesAcademic Oncology and the "Chemotherapy Concession" ).

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