Both sides are to argue their reasons for and against this before the U.S. Supreme Court Tuesday in a case testing whether Vermont's prescription-confidentiality law violates the First Amendment's free-speech protections -- and whether drug companies typically use the information to persuade doctors to switch patients to expensive, new drugs, some of whose side effects may not be fully known.
"It's very powerful data and it's easy to understand why drug companies want it," Burlington, Vt., family physician Norman Ward tells The New York Times. "If they know the prescribing patterns of physicians, it could be very powerful information in trying to sway their behavior -- like, why are you prescribing a lot of my competitor's drug and not mine?"
But this argument is "an attempt to show a darker side to the process," IMS Health Inc. external affairs Vice President Randy Frankel tells USA Today.
Without the data, a small biotechnology company with a tiny sales force might have to "visit 1,000 physicians to identify the 10 whose patients might most benefit" from a breakthrough medicine, Frankel tells the Times. "With the data, [the company] would go to the 10."
IMS, the defendant in the case, supplies the pharmaceutical industry with sales data and consulting services.
The information is now available because pharmacies are required by law to collect and maintain detailed files about each prescription filled. The drugstores can sell records containing a doctor's name and address, along with the amount of the drug prescribed, to data brokers.
Data brokers then aggregate the information and sell it with doctors' names to pharmaceutical companies and other drug marketers.
Patient names and other information are removed.
Vermont, along with Maine and New Hampshire, wants doctors to have a right to opt out of the identifiable data collection. If a doctor says no, pharmacies must remove or encrypt the doctor's name, just as they do for patients, before selling the information for promotional use.
"Does 'Ajax Inc.' have a constitutional unfettered right to the data for commercial purposes," Vermont Attorney General William Sorrell tells the Times, "or is it legitimate to give the doctor who is writing the prescription a say over whether that information should be used for marketing?"
"It's all data, and it's all protected by the First Amendment," IMS lawyer Thomas Goldstein says.
"Pharmacies have this prescription information only by virtue of government regulation," Vermont Assistant Attorney General Bridget Asay, who argue the case Tuesday, tells USA Today. "They do not have an unfettered right to sell or use it for purposes unrelated to the patient's care."
The U.S. Court of Appeals for the 2nd Circuit declared Vermont's law unconstitutional, saying it restricts commercial speech. A separate U.S. appeals court upheld a similar New Hampshire law.