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.”
Amicus Briefs Supporting Petitioners:
Amicus Briefs Supporting Respondents:
- Meredith Jacob. Testimony to the Illinois House Committee on Human Services. (March 4, 2009).
- Meredith Jacob. Testimony to the Montana House Committee on Human Services. (February 9, 2009).
- Meredith Jacob. Testimony to the Health Facilities & Occupations and Government Operations Subcommittees of the Maryland State House Health and Government Operations Committee. (December 3, 2008).
- Sean Flynn. Comments on the Consideration of Regulating the Use of Prescription Data to Target Marketing, Gifts and Other Incentives to Doctors. Testimony before Subcommittee C of the Joint Judiciary Committee, West Virginia State Legislature. (August 26, 2008).
- Sean Flynn. The Constitutionality of Massachusetts' Legislation to Ban Data Mining. PIJIP Blogs. (July 17, 2008).
- American University Press Release. Consumer Groups Defend Vermont Prescription Data Privacy Law: Brief filed by American University Law Professor Defends the Vermont Prescription Data Mining Law. July 23, 2008).
- Brief for the National Legislative Association on Prescription Drug Prices, et. al. as Amici Curiae Supporting Defendants, IMS Health v. Sorrell. No. 1:07-cv-00188. (July 20, 2008).
- Sean Flynn. The Constitutionality of State Regulation of Prescription Data Mining. BNA Pharmaceutical Law and Industry Report. (November 11, 2007)
- Sean Flynn. Testimony to the Washington DC City Council on the Safe Rx Act of 2007. (October 16, 2007)
- Sean Flynn. Comments on Massachusetts Legislation- House No. 2197, An Act Controlling Health Care Costs. (October 4, 2007).
- Sean Flynn. The Constitutional Battle Over State Regulation of Data Mining. (August 30, 2007)
- Sean Flynn. Statement in response to decision in IMS v. Ayotte. (May 1, 2007)
- Brief for Kelly Ayotte as Amicus Curiae Supporting Defendants, IMS Health v. Ayotte. No. 06-CV-280-PB. (2006)
- American University. AU Washington College of Law Information Justice and IP Program Joins Consumer Groups in Defending D.C. Law Prohibiting Prescription Drug Price-Gouging (November 6, 2006).
- Brief for the National Legislative Association on Prescription Drug Prices, et. al. as Amici Curiae Supporting Appellants, Biotechnology Industry Organization v. District of Columbia. No. 2006-1593. (2006).
Medical Organizations' Documents
- American Medical Association. Resolution 606: Opt Out program
- AMA Physician Data Restriction Program Brochure
- National Physicians Alliance, The Sale of Physician Pres Health Care Costs—The National Physicians Alliance Calls for a Ban
- Report. Infuse Anonymized Patient-Level Information into the Brand-Planning Process to Drive Profitable Growth (November, 2006)
- IMS Press Release. IMS Announces Integration of Anonymized Patient-Level Data Across Global Portfolio of Offerings (November 2006).
- CALPIRG 'Tis Always the Season for Giving (September 2004)
- Kaiser's Survey of Doctors: Doctors and Prescription Drugs (March 2002)
- David Grande (editorial). Annals of Internal Medicine: "Prescriber Profiling: Time to Call it Quits" (May 15, 2007)
- Annals of Internal Medicine: "Pharmaceutical Marketing Research and the Prescribing Physician" (May 15, 2007)
- BMJ: "No more Free Lunches" (May 31, 2003)
Selected News Stories
- Mike Dennison for the Helena Gazette. Bill Restricts Use of Prescription Info. (February 17, 2009)
- Daniel Carlat for the New York Times Magazine. "Dr. Drug Rep." (November 25, 2007)
- How Drug Reps Know Which Doctor to Target (August 29, 2006)
- Focus on Pharm Free
- San Francisco Chronicle: "Pushing Pills" (August 6, 2006)
- New York Times: "Doctors Object to Gathering Drug Data" (May 24, 2006)
- PharmaExec.com: "More than a Game of Keep Away" (May 1, 2006)
- The Atlantic.com "Drug Pushers" (April 2006)
- New York Times: "High-Tech Stealth Being Used To Sway Doctor Prescriptions" (November 16, 2000)
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