Supremes to Hear Challenge to Vermont Law

We have not closely followed this story recently so an update/overview is provided by Natasha Singer of the New York Times:
http://www.nytimes.com/2011/04/25/business/25privacy.html?ref=business

Several states have now passed laws limiting the right of medical data brokers like IMS Health to collect patient-de-identified prescribing profiles for individual physicians and then sell these to drug companies, to allow their reps to do better-targeted marketing. Thanks to these data services the average drug rep walks into the physician's office knowing just how many prescriptions Doc wrote for that company's product, and how many for competing products. For many years the average doc had no idea that the reps had this info (which the reps were generally very cautious to conceal), but I think now it's more or less common knowledge.

The states passing such laws argued that even though patient names were not revealed, these data should be treated as confidential professional information, and that selling them to drug companies aided in pushing expensive, brand-name drugs that then broke the state's budget in Medicaid and other state medical programs.

A lower court upheld the relevant law in Vermont, but an appellate court overturned the law, and now the Supreme Court is set to hear arguments tomorrow (April 26).

The response from the opponents of the law is interesting. Companies like IMS Health trot out the usual version of "it's education, not marketing," about how knowing prescribers of specific drugs can aid the company in passing on critical new information, etc. Nothing new there. But what might be interesting is who has joined IMS in filing amicus briefs--along with the National Association of Chain Drugstores (who make bucks off selling these data to IMS, reportedly sometimes more than they make selling drugs), Bloomberg and the Associated Press, apparently seeing this as a freedom-of-speech issue.

Anyway, we'll know tomorrow how the arguments went, and court-watchers will predict how many votes each side will garner from the tenor of the questions asked from the bench. To my inexpert and non-legal mind, the outcome is a foregone conclusion. This court (at least the 5-member majority) seems completely committed to the idea that "commercial speech" is indeed speech and deserves just about as much protection as the sort of speech the framers had in mind when they wrote the Bill of Rights (which was certainly not commercial speech). I cannot imagine that the same court that threw out campaign finance reform, and stood up for a corporation's right to buy the White House and Congress, would not support a corporation's right to buy and sell whatever data they need to make a few bucks off selling more drugs, and the public health consequences be damned.

Singer's otherwise informative article left out one key player in this whole commercial transaction--the American Medical Association. The AMA makes money--some have estimated in the range of $44M annually--by selling the secret code that allows the data from drugstores and insurers to be translated into the names of individual physicians. Funny that the AMA did not submit an amicus brief alongside the drug stores and the Associated Press.