American Journal of Law & Medicine

Prescription privacy: Federal Court strikes down New Hampshire law limiting use of prescription data in pharmaceutical marketing - IMS Health, Inc. v. Ayotte.

Prescription Privacy: Federal Court Strikes Down New Hampshire Law Limiting Use of Prescription Data in Pharmaceutical Marketing--IMS Health, Inc. v. Ayotte (1)--The United States District Court for the District of New Hampshire recently held that a state law restricting the license, transfer, use, or sale of prescription data is unconstitutional under the First Amendment because it regulates constitutionally-protected, commercial speech without directly serving a substantial State interest. (2) The Prescription Information Law, (3) enacted by the New Hampshire Legislature in 2006, prohibits pharmacies and other similar entities from transmitting or using prescription records containing patient-identifiable or prescriber-identifiable information for commercial purposes. (4) The statute defines "commercial purpose" to include advertising, marketing, and "any activity that could be used to influence sales or market share of a pharmaceutical product." (5)

This prohibition directly impacts the "data-mining" business. Data-mining companies purchase prescription data from pharmacies, match it with detailed information about individual prescribers, and sell the resulting prescriber "profiles" to interested parties. Their revenue derives nearly exclusively from sales to pharmaceutical companies which use the prescriber profiles to tailor their drug marketing efforts to individual physicians. In 2006, two leading data-mining companies, IMS Health, Inc. and Verispan, L.L.C., sued the State of New Hampshire challenging the constitutionality of the statute and seeking declaratory judgment to bar its enforcement. The plaintiffs claimed the law impermissibly restricted their right to free speech under the First Amendment. …

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