Briefs

Tony Mauro, Legal Times, March 30, 2009

Two major publishers of health care data filed a petition Friday at the Supreme Court, raising cutting-edge questions about whether increasingly widespread data mining that is used for commercial purposes is protected by the First Amendment.

The petition, titled IMS Health, Inc. and Verispan LLC v. Ayotte, is an appeal of a controversial ruling last November by the 1st U.S. Circuit Court of Appeals. The appeals panel ruled that the data about drug prescriptions gathered by the companies is outside the protection of the First Amendment, in part because it has "scant societal value," in the same way that obscenity is not protected speech. The ruling written by Judge Bruce Selya said the pharmaceutical data at issue in the case was to be viewed, not as speech, but as a commodity like "beef jerky" that can be regulated without running afoul of the First Amendment.

The appeals court upheld a 2006 New Hampshire law that banned using information about a doctor's prescribing history for the purpose of increasing drug sales. The target of the law was the business in which publishers obtain data from pharmacies about a doctor's prescription preferences and illnesses the doctor has treated (without patients' names) and then sell the data to pharmaceutical companies. Those companies, in turn, use the information for what is known as "detailing" -- sales meetings with physicians to tell them about their own drugs or treatments. The data helps the companies tailor their sales pitches.

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