The Constitutionality of Massachusetts' Legislation to Ban Data Mining
Sean Flynn
July 17, 2008
Today the Massachusetts state House passed a healthcare bill which includes a ban on data mining – the process by which pharmaceutical firms purchase prescribing records to hone their marketing to specific doctors. Similar bans on data mining have been passed in other states, most recently Vermont.
Opponents of the Massachusetts ban on data mining claim that it violates the First Amendment rights of data miners. Similar laws have been challenged in New Hampshire and Maine, and two district courts have ruled the bans unconstitutional. However, the rulings are both under appeal, and health advocates supporting the bans are confident that the rulings will be overturned. Lawmakers in Massachusetts carefully considered the legal arguments and acted out of a conviction that these laws will ultimately be upheld.
Laws banning data mining are not
unconstitutional due to a key distinction between commercial speech and
consumer surveillance. Only the former is protected by the First Amendment. The
commercial speech doctrine serves consumer interests in being fully informed of
products and services on the market by providing limited protection to
advertisements and other speech to consumers proposing a commercial
transaction. Pharmaceutical companies engage in commercial speech when they
advertise their products through media and in-person sales calls to doctors.
The commercial speech doctrine does not extend protection to use of information
by private firms that does not communicate with potential buyers. The
plaintiffs are not communicating with potential buyers when they monitor the
prescribing practices of physicians, and therefore this practice is not
accorded protection under the First Amendment.
Indeed, the First Amendment calculus weighs strongly on the other side – of
protecting the autonomy right of individuals to decide when to speak and to
whom. Massachusetts’s
law provides a mechanism for prescribers to choose whether to share their
prescribing information with pharmaceutical marketers and therefore serves
rather than limits important First Amendment interests.
Even if the trade in prescription records was deemed to be speech, there are
overwhelming societal justifications for its regulation. When governments
require the disclosure of personally identifying information, such as that
required on prescription records, privacy interests demand that governments
ensure that the information is safeguarded from unwarranted disclosure. In
addition, an abundance of social science evidence demonstrates that undue
influence of pharmaceutical marketing over the prescribing choices of
physicians and other health professionals compromises a central value of our
health system – that medical decisions be based on evidence, not on personal
relationships, marketing influence or the hope for pecuniary reward. Permitting
pharmaceutical marketers to track prescribing choices and use that information
to tailor commercial messages and target gifts and enticements exaggerates
undue influence of pharmaceutical companies in our health system that raises
health care costs, promotes irrational drug selection, threatens professional
integrity, compromises patient privacy and increases the prevalence of
harassing marketing practices. States have an overriding interest in combating
these social ills.
