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.

 

For information on the debate over data mining and state efforts to ban it, see the PIJIP webpage on the topic.

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