Circuit Upholds Maine’s|Prescription Privacy Law

(CN) - The 1st Circuit upheld a Maine law allowing doctors to keep their prescribing histories confidential from drug companies that target them for marketing.

A three-judge panel in Boston ruled against three prescription drug data analysts who challenged the law, claiming it prevents them from selling information about doctors and other prescribers to drug companies that use the data for marketing.

The law lets prescribers opt to have their personal information and prescribing history kept out of the hands of "detailers," or pharmaceutical representatives who analyze the data and develop marketing agendas based on a prescriber's history and likeliness to switch brands or order more of a certain brand.

Prescribers can also allow detailers to market to them, a practice that some doctors -- but not the majority -- find informative and helpful, according to the ruling.

The analysts earn multibillion-dollar profits by gathering information from a centralized pharmaceutical database and using it to compile reports with prescriber data. They then sell the reports to drug companies.

The analysts won a preliminary injunction barring enforcement of the 2008 law, but the 1st Circuit's ruling reverses that order. The federal appeals court ruled that prescribers have a right not to be bothered with uninvited sales pitches and other marketing tactics.

The analysts had argued that enforcing the law would violate their free speech rights, but the panel noted that the law blocks more conduct than speech, and that even if "detailing" falls into the speech category, it would be considered commercial speech, which a state has broad power to regulate.

"Maine has a substantial interest in protecting its prescribers from unwanted solicitations by detailers in Maine based on their prescribing histories," Chief Judge Sandra Lynch wrote, citing the Supreme Court's acknowledgement of the "right to be let alone."

Lynch also rejected the analysts' claim that the law violates the dormant Commerce Clause, saying they "have not shown any disproportionate burden on interstate commerce.

"This is simply not an example of a state engaged in economic protectionism," Lynch wrote.

She added that states have a right to implement policies aimed at reducing health care costs.

According to the state Legislature, "Restricting the use of prescriber identifying information will act to decrease drug detailing that targets the prescriber, thus increasing decisions to prescribe lower-priced drugs and decisions made on the basis of medical and scientific knowledge and driving down the cost of health care."

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