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New Hampshire Data-Mining Ban Upheld- Blow to Drug Industry Marketing is Boon to States

Tuesday, New Hampshire’s first-in-the-nation law banning the sale of data on physician prescribing habits to drug industry marketers was upheld by a federal appeals court.  The legislation and subsequent court ruling dealt a significant blow to the drug industry and its heavy-handed marketing tactics. The 2006 New Hampshire law, sponsored by Rep. Cindy Rosenwald, will protect the privacy of physicians and their patients by banning data-mining - the process by which the drug industry uses, or mines, the prescribing habits of providers to inform direct-to-provider marketing. As Rep. Rosenwald stated in a press release, the "decision unanimously recognizes that States have the right to protect the prescriber-patient relationship and patient safety, and to try to reduce the cost of pharmaceuticals.” Maine and Vermont passed similar laws which have been held up by litigation, but will now move forward.

The Federal Appeals Court's ruling will open the flood-gates of reform in other states. Sharon Treat, a Maine State Representative and Director of the National Legislative Association on Prescription Drug Prices (NLARx), reports that 12 states in 2008 introduced similar bills.  But, largely “because of the pending litigation challenging the New Hampshire, Maine and Vermont laws, these bills were withdrawn or did not pass. Now that legislators have been given the green light in this unanimous and clear victory, we can expect that these and other states will consider resubmitting this legislation.”

The drug industry spends at least $7 billion each year marketing directly to physicians — pitching the latest "celebrity" drug and driving up health care costs for states, businesses, and consumers.  As the New York Times explains, with “data describing which doctors prescribe what drugs, pharmaceutical sales forces are better able to identify which doctors might use their products and be receptive to their sales pitches. They can also focus on persuading doctors who do not write many prescriptions for their products to change their minds.”

In Tuesday’s unanimous ruling, the court called the data-mining process “mind-boggling.” Stating, “[t]he record contains substantial evidence that, in several instances, detailers armed with prescribing histories encourage the overzealous prescription of more costly brand-name drugs regardless of both the public health consequences and the probable outcome of a sensible cost/benefit analysis.”

Resources

NLARx — Federal Court Upholds New Hampshire Drug Marketing Restrictions
Progressive States Network — Reducing Prescription Drug Costs and Rein in Abusive Drug Industry Marketing Practices
US Court of Appeals — IMS Health and Verispan vs. State of New Hampshire