WASHINGTON, D.C. - (Mealey's) U.S. Supreme Court justices on April 26 questioned why Vermont needs to hide doctors' prescribing habits from drug sales representatives or if the state has a sound public policy reason for doing so (William H. Sorrell, et al. v. IMS Health Inc., et al., No. 10-779, U.S. Sup.).
Vermont's law prohibits pharmacies from selling information about doctors and the drugs they prescribe to data miners unless the doctors consent. Data-mining companies IMS Health Inc., Verispan LLC and Source Healthcare Analytics Inc. sued Vermont in the U.S. District Court for the District of Vermont.
The District Court held that the law was not unconstitutional. The data miners appealed, and a divided panel of the Second Circuit U.S. Court of Appeals held that the law is an unconstitutional restriction on speech. Vermont appealed.
Justice Antonin Scalia questioned why Vermont can't just let doctors tell drug "detailers" that they are not interested in their sales pitches. Other justices, including Justice Ruth Bader Ginsburg, noted that the Vermont law allows health researchers and insurance companies to have access to prescribing information but not data miners.
Justice Samuel A. Alito Jr. noted that the Vermont law allows the state to run a "counter-detailing" program to advocate to doctors to prescribe less expensive generic drugs.
Justice Sonia Sotomayor questioned why the Vermont law didn't have an opt-out option rather than an opt-in one. She noted that the opt-out option for telemarketing calls to consumers is widely known and well-used.
Justice Ginsburg said the law appears to run counter to Supreme Court speech case law because it appears to "lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better."
Justice Anthony M. Kennedy said it appears the law would pass muster if it prohibited general dissemination.
Justice Stephen G. Breyer asked Thomas C. Goldstein of Goldstein, Howe & Russell in Bethesda, Md., if he would say it is unconstitutional for the Federal Trade Commission to restrict drug marketing based on doctors' prescribing practices because they are "irrelevant and harmful and false." Goldstein, arguing for the data miners, said he would, but said "I don't have to win that argument to win this case."
Justice Breyer asked if the question of getting unbiased information isn't one for doctors and the Vermont Legislature to decide, rather than the Supreme Court. Goldstein said drug marketers' messages have been "cleared" by the Food and Drug Administration.
[Editor's Note: Full coverage will be in the May 5 issue of Mealey's Emerging Drugs & Devices. In the meantime, the transcript is available at www.mealeysonline.com or by calling the Customer Support Department at 1-800-833-9844. Document #28-110505-001T. For all of your legal news needs, please visit www.lexisnexis.com/mealeys.]
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