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PIJIP Associate Director Files Brief in the 2nd Circuit Court of Appeals Supporting Vermont’s Right to Protect Confidential Prescription Data
September 16, 2009
FOR IMMEDIATE RELEASE:
Contact: Meredith Jacob, Attorney
Program on Information Justice and Intellectual Property
W- 202.274.4253; M- 443.745.5366; Email- meredith.jacob@gmail.com
Franki Fitterer, Director of Public Relations
202-274-4279, Email - ffitterer@wcl.american.edu
Professor Sean Flynn, Associate Director of the Program on Information Justice and Intellectual Property (PIJIP), filed a brief in the United States Court of Appeals for the Second Circuit for amicus curiae AARP, the National Legislative Association on Prescription Drug Prices, Community Catalyst, and Prescription Policy Choices. The case, IMS Health, Inc., v. Sorrell, was a challenge to a Vermont law protecting prescriber-identifiable prescription data from being used for marketing purposes without consent. Amici supported appellees, the State of Vermont.
A copy of the brief is available at http://wcl.american.edu/pijip/go/brief09152009
The brief argues that Vermont’s statute is an important tool for reducing costs and improving patient outcomes. It further argues that the least First Amendment scrutiny should be applied to cases such as this one, where the challenged regulation applied only to the private commercial communication of private medical information. Further, the brief reviews the social science findings that show the negative impact of the use of prescriber-identifiable data on the cost and quality of health care.
The Vermont law is an important tool to improve patient care and reduce the influence of pharmaceutical marketing on medical decision making. A victory here would reinforce the ruling of the First Circuit in IMS Health, Inc., v. Ayotte, a case that upheld a similar New Hampshire Law in 2008. Together, these cases would send a clear signal about the constitutionality of this type of regulation to other states considering these laws in upcoming legislative sessions.
"The regulated activity of Plaintiffs transfers information from medical records, which by tradition, reasonable expectation, and operation of law are confidential,’ said Professor Flynn. “This is the epitome of private speech. The First Circuit was correct in holding that such speech serves no First Amendment purpose and therefore is not subject to heightened scrutiny under the commercial speech doctrine.
Discussing the negative role that direct-to-prescriber marketing has had on public health, Flynn noted that “there is an exhaustive legislative record demonstrating the direct public harms sought to be regulated. This record includes thirty-one legislative findings that are supported by the overwhelming weight of social scientific research. The fact that such an overwhelming record supports a minimal invasion of First Amendment interests makes this an easy case."
PIJIP Pharmaceutical Policy Fellow Meredith Jacob said, "Increasingly, the conduct of daily life creates a trail of identifiable data about everything from one’s medical conditions, domestic travel, and purchasing choices. A First Amendment right to sell any information a company briefly possessed would dramatically restrict the ability of states to respond to regulatory challenges in the digital age. The future of privacy is dependent not on the ability to remain truly anonymous, but on the ability of the law to limit the use of data once collected."
Sharon Treat, Director of the National Legislative Association on Prescription Drug Prices (NLARx), voiced her support for the Vermont law: “While the federal government still struggles to reform health care, states have been on the front lines for years implementing innovative strategies to control costs, expand access and improve the practice of medicine. Vermont’s law restricting the marketing use of prescriber records is an important measure that advances all these goals, as the courts have already recognized. NLARx strongly supports the rights of states such as Vermont to address the out of control marketing efforts of the drug companies that make use of this data mined private information.”
The Program on Information Justice and Intellectual Property (PIJIP) at the Washington College of Law promotes public interest approaches to domestic and international intellectual property law through advocacy, events and the provision of legal and consulting services. PIJIP’s activities focus on a balanced approach to intellectual property and other legal regimes that reward creators while ensuring broad public access to information and its products.