Another battle in the Green Mountain State

June 23, 2008 – 5:48 pm

I just received an e-mail from John Kamp at Wiley Rein; Mr. Kamp, as executive director of the Coalition for Healthcare Communication and Bert Rein of Wiley Rein have filed a friend of the court brief on behalf of IMS Health Inc., Verispan Inc., and Source Analytics Healthcare Inc. in these companies’ challenge of Vermont’s Prescription Confidentiality Law. That’s the statute that prevents drug marketers from using prescriber-identifiable data for marketing purposes.

You can click on the link to download a copy of the document for yourself: IMS vs. Sorrell amicus brief. The Coalition for Healthcare Communication is concerned that “if this Vermont statute is not overturned, governments will resort to tactics used here to restrict the data and communication of other commercial speakers, thus much of the robust commercial communication that empowers informed decisions by professionals and consumers in America. Furthermore, several hastily drawn provisions adopted quickly after a similar state law was invalidated on First Amendment grounds only highlight the fatal flaws of the statute under the First Amendment. Allowing such empty and transparent attempts to save a clearly unconstitutional statute would send exactly the wrong signal to government entities across the United States. In fact, these provisions utterly fail to meet the heavy burdens of proof faced by governments intending to censor free speech. … Allowing Vermont to limit information to prescribers about new drugs undervalues the professional judgment of doctors, undermines the doctor-patient relationship, and interferes with individual patient care and the public health.”

At the same time, the National Legislative Association on Prescription Drug Prices has filed a friend-of-the-court brief in defense of the law. The press release has not been put up as of this very minute that I am posting, but according to American University Washington College of Law Professor Sean Flynn, who filed the brief, “This case turns on a key distinction between commercial speech and consumer surveillance. Only the former is protected by the First Amendment. The commercial speech doctrine serves consumer interests in being fully informed of products and services on the market by providing limited protection to advertisements and other speech to consumers proposing a commercial transaction. Pharmaceutical companies engage in commercial speech when they advertise their products through media and in-person sales calls to doctors. The commercial speech doctrine does not extend protection to use of information by private firms that does not communicate with potential buyers.”

As Mr. Kamp quipped, “We’re not quite aligned.”

UPDATE: Thomas Sullivan at the Policy and Medicine blog comments on the NLARx brief and provides the release. “Our patients deserve more informed healthcare professionals not those who have only been spoon fed what the government thinks is important for us to know,” he says.