Doctors, the Supreme Court has just ruled that your prescribing data can indeed be used without your consent by pharma companies who want to market their drugs to you.
As the WSJ reports, the court ruled 6-3 that a Vermont law barring data companies such as IMS Health from selling that info to drug companies violated the First Amendment. (Heres the opinion.)
The data is stripped of patients, but not doctors, identities. Vermont and its supporters said the practice invaded medical privacy and helped push up drug spending by improving pharma-industry marketing efficiency. The data companies and their backers said the state cant make judgments on how the information is used if, for example, its allowed to be used to help with recalls, it also has to be available to marketers.
Writing for the majority, Justice Anthony Kennedy notes that the statute disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers.
Justice Kennedy writes:
the State gives possessors of the information broad discretion and wide latitude in disclosing the information, while at the same time restricting the informations use by some speakers and for some purposes, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers.
Justice Stephen Breyer wrote a dissenting opinion, joined by Justices Elena Kagan and Ruth Bader Ginsburg, saying that depriving pharma companies of the data is inextricably related to a lawful governmental effort to regulate a commercial enterprise and doesnt violate the Constitution.
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