Government lawyers defending limits on the marketing of new drugs ran into sharply skeptical questions at the Supreme Court from conservative justices who said the First Amendment protects the free-speech rights of the drugmakers to market their products directly to doctors.
At issue is whether states can forbid pharmacies from selling to drugmakers the confidential prescription records of physicians. Armed with this information, drug company salesmen have targeted doctors who are not prescribing the newest and most costly brand-name drugs.
A Vermont state lawyer, backed by the Obama administration, argued no one has a First Amendment right to this "inside information."
But Chief Justice John G. Roberts Jr. said the state was "censoring" the message of the drug company salesmen. If doctors do not wish to hear from these salesmen, they should say, "I don't want to talk to you," added Justice Antonin Scalia.
The high court argument cast doubt on the fate of recent laws adopted in three New England states and also considered by dozens of others, including California, Connecticut, Florida, Illinois and Maryland. The privacy of patients is protected by law, but the same is not true for physicians and the prescriptions they write.
In the past decade, data mining firms have turned this information into a billion-dollar-a-year business. They sell the prescription data to drugmakers who, in turn, use it for marketing. Vermont's doctors were surprised to learn their confidential prescription records were being sold. "They were completely unaware the drug marketers had access to their prescription records. They thought this compromised the physician-patient relationship, and that it was driving up the cost of pharmaceuticals," said Paul Harrington, executive vice president of the Vermont Medical Society, in an interview.
Vermont's lawmakers agreed, noting that spending on prescription drugs had nearly doubled in five years. To protect the privacy of doctors and to contain health costs, the state in 2007 prohibited pharmacies or insurers from "selling" prescription records for the "marketing or promoting" of drugs.
But IMS Health Inc., a data mining company, and the Pharmaceutical Research and Manufacturers of America sued the state. They contended they had a free-speech right to buy and sell information to market their products.
The Obama administration joined the case on Vermont's side and argued the state was justified in seeking to hold down health care spending. The justices will likely rule on the issue in late June.