Today the First Circuit Court of Appeals unanimously upheld New Hampshire’s Prescription Confidentiality Act, which prohibits the commercial use of prescriber data, including for pharmaceutical detailing.
The practice, commonly known as “data-mining,” is a key tactic used by prescription drug companies to tailor their marketing campaigns to individual doctors. The New Hampshire first-in-nation law was struck down by a district court in April 2007 on the grounds that the use of that data by health information companies, pharmacies, and drug companies constitutes commercial speech. The state appealed, and IMS Health v. Ayotte was heard by the First Circuit Court of Appeals in Boston in January of this year.
In its 148-page decision upholding the law, the Court said “the portions of the law at issue here regulate conduct, not speech” and even if they qualified as protected speech (the Court held they did not), New Hampshire’s restrictions on the use of prescription data would pass “constitutional muster” in regulating that speech.
“This is an important decision for data privacy advocates,” said Sean Fiil-Flynn, Counsel for the public interest amici in the case, and with whom the Prescription Project filed a friend of the court brief. “The ramifications of giving companies a First Amendment right to sell data on all of our purchases, travel and activities would be staggering.
“The First Circuit ruled on the side of consumer privacy, admonishing that the First Amendment does not protect every exchange of information from traditional social and economic regulation. It refused to apply the First Amendment to the trading of prescription records for marketing purposes where ‘information itself has become a commodity.’ The court explained that applying the First Amendment to such trade in prescription data ‘stretches the fabric of the First Amendment beyond any rational measure.’”
Flynn is the Associate Director of the Program on Information Justice and Intellectual Property at the Washington College of Law, American University.
The Court wrote: “We believe that in moving to combat the novel problems presented by detailing in the information age, New Hampshire has adopted a form of conduct-focused economic regulation that does not come within the First Amendment’s scope.”
To read the decision for yourself, go here.