Regulation of Prescription Data Mining

Supreme Court - Sorrell v. IMS

Program on Information Justice and Intellectual Property Professor Sean Flynn Responds to Supreme Court Decision in Sorrell v. IMS Health, Inc.

June 23, 2011, Washington, D.C.

Today the United States Supreme Court struck down a Vermont law that limited the sale of physician-identifiable prescription data for marketing purposes. In a 6-3 decision, the Court held that the law was a violation of the First Amendment.

Prof. Sean Fiil-Flynn, Associate Director of the Program on Information Justice and Intellectual Property at the Washington College of Law served as counsel for amici AARP and National Legislative Association on Prescription Drug Prices. Prof. Fiil-Flynn responds:

“For the first time in the Court’s history it has extended heightened First Amendment protection to the commercial trading of information that is neither from the public sphere nor destined for it. Vermont regulated only the commercial trade in prescription records that were purely for the purpose of targeting marketing to doctors to alter prescriptions toward more profitable outcomes. Doctors and patients do not advertise their records to the public when they use them to process prescriptions. And pharmaceutical marketers do not use prescription records like newspapers to inform the public about matters of generalized import — indeed, their contracts with dataminers prohibit them releasing any information from them to the public, or even the doctors they track. The First Amendment’s interests in promoting a marketplace of ideas and facilitating democratic decision making through the free flow of public information are not furthered by protecting from regulation the private commercial trade of private information in medical records.

“The bright spot in the Court’s opinion is its recognition that there is, in fact, an interest of governments in protecting the confidentiality of prescription records. The Court opined that ‘[p]erhaps the State could have addressed physician confidentiality through a more coherent policy,’ such as ‘by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances.’ For an example of such a law, it cites the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which bans many commercial and other uses of medical records, but does not extend its protection to prescriber-identified prescriptions. Accordingly, the advice to States and Federal legislators concerned about the privacy and other public policy implications of permitting the free trade in prescription records for commercial marketing purposes is to pass laws that extend the protections of HIPAA to prescriber identified prescription (and other medical) records.”