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First Circuit Upholds Prescriber Privacy

Appeals Court Upholds New Hampshire’s Anti-Datamining Law

Reston, VA, 11/20/2008 – On November 18th, the First Circuit Court of Appeals upheld a New Hampshire law that prevents the for-profit sale of prescription records for commercial purposes.  Reversing a lower court’s ruling, the appeals court stated: “In combating this novel threat to cost-effective delivery of health care, New Hampshire has acted with as much forethought and precision as the circumstances permit and the constitution demands.” The collection of individualized prescription data allows pharmaceutical companies to deliver targeted sales pitches to doctors, promoting expensive brand name drugs over cheaper but equivalent generic drugs, at a cost to patients and the health care system overall.  In 2006, the New Hampshire legislature passed a law, dubbed the Prescription Information Law, banning the sales of prescription data for marketing purposes.  However, the law was thrown out by U.S. District Judge Paul Barbadoro after IMS Health and Verispan, two companies involved in trading prescription data, sued.  A similar law in Maine was also ruled against by another federal judge, who relied on the New Hampshire decision.  This week’s decision will apply to both states’ laws.

“This decision [to uphold the law] is a victory for patients, for privacy advocates, and for the sanctity of the patient-doctor relationship,” says Dr. Benjamin Schaefer, chair of the Unbranded Doctor Taskforce of the National Physicians Alliance, a multi-specialty organization of physicians that accepts no pharmaceutical industry funding. “The pharmaceutical industry has lobbied heavily against this and similar bills in other states,” says Dr. Schaefer, a cardiologist and board member of the National Physicians Alliance.  “They are accustomed to getting their way. We hope to see more decisions like these that favor better patient care over the profits of corporations.”

Others praised the decision as well.  Sharon Treat, Executive Director of the National Legislative Association on Prescription Drug Prices (NLARx), noted, “This is a groundbreaking and important decision. This decision lifts a cloud of doubt that has hung over the passage of similar laws in other states.”  It is expected that many states will now proceed with similar legislation.

As physicians, we must reclaim medical practice from undue marketing pressures. The National Physicians Alliance encourages all doctors to join our Unbranded Doctor Campaign—a national network of physicians committed to reducing the influence of pharmaceutical marketing on our profession: www.unbrandeddoctor.org.

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