First Circuit Court of Appeals Upholds New Hampshire Law to Ban the Sale of Prescriber Data to Pharmaceutical Firms
On November 18, 2008, the 1st Circuit Court of Appeals issued a decision in IMS v. Ayotte, the case challenging New Hampshire’s Prescription Confidentiality Act, which prohibits the commercial use of prescriber data, including for pharmaceutical detailing. The Court unanimously upheld the law, finding that it did not violate the First Amendment.
The Act sought to prohibit the practice of “datamining” for the purpose of pharmaceutical marketing: pharmacies sell doctors’ individual prescribing data (what drugs the doctors prescribed, when, and how often) to companies that aggregate such data. Those companies then sell prescribing “profiles” of individual physicians to drug companies, whose salespeople can then use that information to tailor the “pitch” that they use in marketing their drugs to those doctors. For instance, if a doctor has been prescribing a competitor’s drug, they might tailor the sales pitch to talk about why their drug is allegedly superior.
IMS Health, a company that collects and sells pharmacy data on doctors’ prescribing practices, sued the state of New Hampshire before the ink was barely dry on the law. They alleged that it violated their First Amendment rights. In April 2007, the U.S. District Court for the District of New Hampshire agreed, and struck down the law. The State of New Hampshire appealed the decision to the 1st Circuit Court of Appeals, which heard the appeal in January 2008.
PIJIP Professor Sean Fiil-Flynn represented AARP, the National Legislative Association on Prescription Drug Prices, Community Catalyst, National Physicians Alliance, New Hampshire Medical Society, and Prescription Policy Choices in filing an amicus brief before the 1st Circuit.
- Press Release. First Circuit Court of Appeals Upholds New Hampshire Law to Ban the Sale of Prescriber Data to Pharmaceutical Firms. November 18, 2008).
- Amici Brief to First Circuit Court of Appeals in IMS Health v. Ayotte
- Amici Brief to US District Court for the State of New Hampshire in IMS Health v. Ayotte. (December 15, 2006).
- Decision of the First Circuit Court of Appeals in IMS v Ayotte. (November 18, 2008).
- Decision of the US District Court for the State of New Hampshire in IMS v. Ayotte. (April 30, 2008).
Civil Society and Industry Statements
- National Legislative Association on Prescription Drug Prices Press Release. (November 18, 2008).
- Prescription Project Fact Sheet on Datamining. (August 28, 2008).
- Joint Statement by IMS and SDI re: Appeals Court Decision Overturning Federal Court Rejection of New Hampshire Prescription Info Law