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Sunday, April 21, 2024 | Back issues
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NH Prescription Privacy Law Survives Challenge

(CN) - A federal appeals court in Boston lifted an injunction on a New Hampshire law aimed at reducing the costs of prescription drugs, because the portions challenged by health-care research companies restrict conduct instead of commercial speech.

Pharmaceutical sales representatives, called "detailers," traditionally promote name-brand drugs through one-on-one interactions with doctors. Armed with each physician's prescribing history, detailers deliver tailored sales pitches for expensive new drugs.

Pharmaceutical companies pump time and money into detailing. The average primary care physician interacts with at least 28 detailers a week, and drug companies spend billions of dollars a year on detailer freebies, including small gifts, complimentary lunches and free drug samples.

New Hampshire, convinced that detailing kept drug costs unnecessarily high, enacted the Prescription Information Law in 2006, which denied detailers access to physicians' prescribing histories. Violators face criminal and civil penalties.

A pair of data miners challenged the law, claiming it violated their freedom of speech. U.S. District Judge Paul Barbadoro agreed and enjoined the state from enforcing it.

On appeal, the state relied on a previous Supreme Court decision that the 1st Circuit rejected as an "inapt" comparison. But the judges said they "nonetheless believe that what the state seeks to regulate here is conduct, not expression."

Judge Selya, writing for the 2-1 majority, pointed out that the Supreme Court has recognized a handful of exceptions to the First Amendment: fighting words, obscenity, and false or misleading commercial speech, to name a few.

"Scholars have labored to formulate theories about why First Amendment immunity exists in such cases," the judge wrote. "Despite these efforts, the matter remains a doctrinal mystery."

The appeals court justified the exceptions on a "felt sense that the underlying laws are inoffensive to the core values of the First Amendment," because they "principally regulate conduct and, to the extent that they regulate speech at all, that putative speech comprises items of nugatory informational value."

Similarly, the New Hampshire law falls beyond the First Amendment's reach because it regulates conduct and not speech, in the court's view.

The court added that the provisions are still constitutional, even if they regulate some commercial speech. The plaintiffs lacked standing to argue any free-speech claims on behalf of detailers or physicians.

The majority judges also rejected claims that the law is too vague and that it violates the dormant Commerce Clause.

Judge Lipez, in a detailed concurrence and dissent, said the injunction should be lifted, but disagreed with the majority's refusal to take on the First Amendment issue "at the core of this case."

Lipez said the Act was designed to limit detailers' speech.

"The majority relies on the prudential doctrine of standing to avoid deciding whether that limitation violates the First Amendment," Lipez wrote. "In my view, that avoidance is wasteful and unwise, unsupported by principles of standing, and analytically flawed."

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