New Hampshire’s 2006 “Prescription Information Law” raised questions about the boundaries between speech, actions, and privacy. Last week, the First US Circuit Court of Appeals answered those questions by ruling that the law is constitutional. The ruling overturned a 2007 US District Court decision.
The law, intended to protect patients’ health and control healthcare costs, forbids pharmacies, insurance companies, and data-mining firms to sell or use prescription information that identifies doctors. IMS Health and Verispan challenged the law, arguing that it restricted free speech. The District Court Judge for the District of New Hampshire agreed and enjoined the state from enforcing the law.
The First Circuit held that the previously overturned “portions of the law regulate conduct, not speech.” The court added that even if the exchange of prescription data were regarded as speech, New Hampshire’s law regulating this exchange would pass “constitutional muster.”
Sean Fiil-Flynn, associate director of American University’s Washington College of Law Program on Information Justice and Intellectual Property, was counsel for the public interest amici in the case. “The ramifications of giving companies a First Amendment right to sell data on all of our purchases, travel, and activities would be staggering,” he said in a press release.
I’m inclined to agree. Drug companies are entitled to research prescribing habits in general as part of their marketing strategies. But I think that marketing based on information about individual doctors’ behavior violates their privacy and patients’ privacy. The industry can surely find other ways to promote its products or learn how to improve them.