Government lawyers defending limits on the marketing of new drugs ran into sharply skeptical questions Tuesday at the Supreme Court from conservative justices who said the 1st Amendment protected the free-speech rights of drug makers to market their products directly to doctors.
At issue is whether states can forbid pharmacies from selling to drug makers the confidential prescription records of physicians. Armed with this information, drug company salesmen have targeted doctors who are not prescribing new and costly brand-name drugs.
A Vermont state lawyer, backed by the Obama administration, argued that no one had a 1st Amendment right to this "inside information."
But Chief Justice John G. Roberts Jr. said the state was "censoring" the message of the drug company salespeople. If doctors do not wish to hear from the salespeople, 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 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 last decade, data-mining firms have turned this information into a billion-dollar-a-year business. They sell the prescription information to drug makers 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," Paul Harrington, executive vice president of the Vermont Medical Society, said 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, contending they had a free-speech right to buy and sell information to market their products. And they won before the U.S. court of appeals in New York.
The Obama administration joined the case on Vermont's side and argued the state was justified in seeking to hold down healthcare spending. The limits on marketers will help reduce costs "by decreasing demand for brand-name drugs that are generally more expensive than generic alternatives," the administration's lawyers said in a legal brief.
Bridget Asay, a Vermont state lawyer, also argued that no 1st Amendment right was threatened. The drug marketers have no right to prescription records, she said, just as they "have no right to demand access to a doctor's tax returns or his patients' records."
But several justices noted that universities and research labs can buy prescription records under the terms of the Vermont law. It restricts only marketers, they said, and such discrimination violates the 1st Amendment.
Picking up on the point, Thomas Goldstein, a lawyer for the data miners, said Vermont's law was about "restricting true advertising" and that the state could not restrict "truthful and accurate speech" about drugs and their benefits. Vermont does not "like the marketplace of ideas," he said, and for that reason, its law should be struck down.
The justices will probably rule on the issue in late June.