Free Speech vs. Medical Privacy Hits The Supreme Court

from the seems-like-a-stretch dept

Mon, Jan 10th 2011 4:25pm — Mike Masnick

I'm a big First Amendment advocate, but there are certainly times when people claim First Amendment rights that don't make much sense. Take, for example, the case that the Supreme Court recently decided to hear, Sorrell v. IMS Health, in which pharmaceutical companies are claiming a First Amendment right to use data from pharmacies to market to doctors.

The details involve a Vermont law that forbids data-mining companies and pharmaceutical firms from buying up prescription data, compiled by various pharmacies as required by law, to then go and market certain drugs directly to doctors. As you probably know, pharmaceutical firms spend billions every year trying to convince various doctors to prescribe their brand name drug, over the much cheaper generic equivalents (this "marketing" often involves ethically questionable practices). Thus, the data of what's being prescribed is really useful. The Vermont law said that this data couldn't be sold to data mining firms or drug companies without the doctors' consent. The 2nd Circuit appeals court said the law violated the First Amendment. Similar laws from neighboring New Hampshire and Maine had been upheld as Constitutional in the 1st Circuit, which is probably why the Supreme Court agreed to hear this case now -- to settle the split between the lower courts.

In this case, it seems like the 1st Circuit rulings make more sense. The key issue isn't even really the First Amendment rights of the companies to make use of this data, but that the data is available at all. The reason the marketing firms and pharmaceutical companies have access to that data at all is because the government requires the pharmacies to collect such data. Thus, it seems reasonable for governments to also then restrict how that data is used and/or sold in the interest of medical safety. It's not as if the data is public, and it's only being collected at the behest of the government. So it seems like a stretch to claim that this data, which is only available due to a government requirement, can't then include other restrictions.

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Filed Under: first amendment, medical info, medical privacy, privacy
Companies: ims health, sorrell

28 Comments

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Anonymous Coward, 10 Jan 2011 @ 4:44pm

"it's only being collected at the behest of the government"
Regardless of why pharmacies stated collecting this data, there is absolutely no doubt that they would continue to collect it if government data requirements ended tomorrow.
Excepting those few states where it is restricted, the sale of that data is now established an easy revenue stream for the retail pharmacy business.
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Jay (profile), 10 Jan 2011 @ 4:56pm

Devil's Advocate
But if the government is collecting this data...

Should it be in the public domain at any time?
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angal2 (profile), 10 Jan 2011 @ 5:08pm

I'm curious as to what sort of data is being collected, and if the collection of this data could in any way be a violation of HIPAA.
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Anonymous Coward, 10 Jan 2011 @ 5:15pm

Re:
Unless the data is of the "Patient X was prescribed medicine Y" variety, it probably doesn't fall under HIPAA regulations.

I would expect the data to be aggregated in some form - "there were X prescriptions for this medicine during the following time period..."
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bob, 10 Jan 2011 @ 5:18pm

Wht is the data collected in the first place.
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bob, 10 Jan 2011 @ 5:23pm

Wht is the data collected in the first place.
This data collection is done with taxpayer monies, Medicare/Medicaid/Tricare, so that data should be open and free to use for anyone.
As to the rest, Private insurances, that data should not be give out.
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Karl (profile), 10 Jan 2011 @ 5:33pm

Re: Devil's Advocate
But if the government is collecting this data...

Should it be in the public domain at any time?

I assume (but am not sure) that this is PDMP ("prescription drug monitoring program") data. It's used mainly to monitor substances which are addictive, but legal with a doctor's prescription (e.g. codeine, oxycontin). It usually includes everything (including patients' names), and is accessible only by law enforcement or other government agencies.

But each state has different laws, and some allow the data to be used by private parties (so long as it is stripped of personally identifying information).

At least I think that's what's going on. It's about as good a guess I could make from the LA Times article and a quick Google search.
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TechnoMage (profile), 10 Jan 2011 @ 5:37pm

I'm surprised
I somehow think that the DRUG MAKER... knows how many pills each pharmacy(or group of them) buys and sells... since they can only get them from the maker in the first place... so this data isn't about aggregate information. So if this data is more about "per pharmacy" or "per zip code" it is more about marketing, or if it is more like what I expect "John. Q. Public got 1 month of twice daily 10mg worth of _insert random drug name_" then this is more about invasion of medical privacy.

Open government and Open...anything... needs to have limits, like private medical records... of... I don't know... _maybe_ just maybe what prescriptions someone is taking.

Big Pharma knows how many pills they are making. Perhaps this should be a sign that Pharma shouldn't be allowed to market to doctors (or anyone else for that matter), there is no reason why pill commercials should be legal, they don't help the overall society, they just make us want more pills.
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The Mighty Buzzard (profile), 10 Jan 2011 @ 5:38pm

I'm not sure how the law is worded but it seems to me that it would be a lot easier to use the commerce clause to forbid drug companies from buying such data than it would to forbid pharmacies from selling it to them.
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Chris in Utah (profile), 10 Jan 2011 @ 6:18pm

Umm question...
Anybody know why we allow government to collect information on drugs in the first place? Spare me on the war on drugs.
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freak (profile), 10 Jan 2011 @ 6:49pm

Re:
I may be wrong, but I think mike intended to negate both parts of that sentence.
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Not willing to register, 10 Jan 2011 @ 6:54pm

Corporations are NOT persons
Corporations are made up of people, but not a person. The Constitution grants rights to individuals. I have a hard time believing that the founders intended for economically powerful groups to have the same rights as a poor individual. I think they mean for all folks to have the same rights, rich or not.

There is a bit of a tortured history in the US over this issue, but I believe that some courts have ruled improperly over this issue. I also believe that corporations should NOT enjoy any of the rights enumerated in the Constitution. Those are reserved for individuals.

Here is an article that explains the issue, unfortunately behind a registration wall:

http://www.law.com/jsp/article.jsp?id=1050369429283

The article quotes Justice Renquist as believing that the precedent is weak.

So why should a corporation have First Amendment rights to begin with.

Not willing to register
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Anonymous Coward, 10 Jan 2011 @ 7:30pm

Obama also is trying to sell the people the Internet ID idea, the government is trying really hard to take away privacy and control from citizens.
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Anonymous Coward, 10 Jan 2011 @ 7:49pm

The drug companies really don't care what drugs you are taking and don't receive that information from IMS. What they are interested in is what doctors are prescribing their drugs. One person taking their drug isn't that valuable, one doctor that tells 300 people a month to take a drug is.
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hippaa sherriff, 10 Jan 2011 @ 8:53pm

Not all medical providers are required to be HIPAA compliant.
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Jay (profile), 10 Jan 2011 @ 9:52pm

Re: Corporations are NOT persons
Defined for the 14th Amendment

Contract Clause as defined for corporations

Large problems with corporate sponsorship mean that people have a larger advantage with business money than a regular person. If the Judicial System ever takes away a corporation's "right to exist" it would effectively alter quite a lot of rulings in regards to business rights, consumer rights, corporate money in politics, etc.
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Anonymous Coward, 10 Jan 2011 @ 10:41pm

Re: Wht is the data collected in the first place.
No, personally identifying information should not be available to anyone, regardless of whether it is a government program or not. I did not give up my privacy rights just because I'm poor.
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Karl (profile), 11 Jan 2011 @ 1:07am

Re: I'm surprised
since they can only get them from the maker in the first place...

Actually, that's not correct, and I suspect it's the entire point of collecting the data.

With a ton of prescription drugs, there are either competing drugs (e.g. allergy medications), or generic equivalents. From a single drug-maker's perspective, either is bad for your business.

So, you gather data, and in any areas where patients are buying generics or competitors' drugs, you target the local doctors and hospitals with whatever bribes are currently legal.
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The eejit (profile), 11 Jan 2011 @ 3:37am

Re:
Hey, this has been going on since Nixon. Don't lay it all at Obama's feet.
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Michael, 11 Jan 2011 @ 6:31am

Glad I'm Canadian
Where I live NO ONE can access my medical information without my express consent. Employers have no access, police have no access, and unless I sign something called a "form 14" authorizing the release of my medical information (and the scope is very limited) they cannot legally read one single line.
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Anonymous Coward, 11 Jan 2011 @ 6:55am

Re:
The data being collected consists of detailed quantitative information about which physician writes which prescription for which drugs.
The pharmaceutical companies are therefore able to have their sales reps come into the physician's office and literally say "I know you prefer to write prescriptions for brand X. Can I have 2 minutes of your time to tell you why I think my brand Y is better than X."/
They may even say things like, "I know I'm not going to convince you to write my drug all the time, but can you at least give me 2-3 prescriptions per month, especially in those special circumstances where my drug has been shown to be superior to your favorite"

There is no patient specific information being collected, and therefore this is not a HIPAA issue.
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Anonymous Coward, 11 Jan 2011 @ 7:03am

Re: Devil's Advocate
The government is NOT collecting this data. The government requires pharmacies to have the infrastructure in place to report detailed information regarding physician prescribing with respect to controlled drugs such as narcotics.
Since the infrastructure is in place to collect that information however, it is very simple for retail pharmacies to collect information about ALL prescriptions. This information is very valuable to the pharmaceutical industry to allow them to target their marketing strategies. As I stated previously, the government requirement is now immaterial since the retail pharmacies will continue to sell this information regardless (unless prohibited from doing so).
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Anonymous Coward, 11 Jan 2011 @ 7:16am

Re: Glad I'm Canadian
I'm glad you brought this up.

HIPAA was sold to the American public as a protection against disclosure of their private information.
In fact, HIPAA was one of the greatest political sleight-of-hand maneuvers in a long time. Prior to HIPAA, there were situations in which patients and/or physicians were able to deny medical information to their employers or their insurers on the basis of privacy. HIPAA guaranteed that by law, that employers who offer insurance benefits, and insurers always have access to medical information.
It is now a very expensive mistake for a health-care provider to inadvertently allow a patient's information to be seen by an uninterested 3rd party, whereas the very people who patients didn't want to see their information have an unequivocal right to it.
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Paul Keating, 11 Jan 2011 @ 7:48am

commercial vs non-commercial Speach
The Supremes long ago distinguished between commercial and non-commercial speech for the purposes of the 1st amendment. For restrictions on commercial speech, the government must only show a reasonable purpose. The case should be an easy toss for me and the only explanation for their having accepted it is to (hopefully) strengthen this distinction.

This is fine for me and I for one wish it would be more strenuously applied to corporations in the area of political contributions and lobbying. The fact that you are a corporation makes your speech inherently commercial. Lobbying is inherently commercial. If it were not commercial, for profit corporations would not do it and if they did it would not be deductible as a business expense since it was not in furtherance of earning income (the IRS standard not mine).

PRK
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Karl (profile), 11 Jan 2011 @ 12:55pm

Re:
Obama also is trying to sell the people the Internet ID idea, the government is trying really hard to take away privacy and control from citizens.

Heh. You know, I just ran across an article about this:

New Urban Myth: The Internet ID Scare

This is from the CDT, who are very concerned (to put it mildly) with citizens' privacy and control.
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Anonymous Coward, 11 Jan 2011 @ 1:10pm

Re: Re: I'm surprised
Karl, your suspicion is absolutely correct.
Although I would point out that the "bribes" have largely dried up in the past 3-4 years as appropriate public scrutiny of the process has been brought to bear.
Now there are no more free trips to the Bahamas, hardly any paid speaking engagements, almost no free "educational" lunches, no more free handbags at conventions, no pens, no more note pads, etc. etc.
There has been a huge vacuuming of 'drug money' dirt from the healthcare system lately.

Whether the money Pharma has saved will actually go into price reduction, or into new research is doubtful however.
How about bigger CEO bonuses as a reward for saving money perhaps??
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Anonymous Coward, 11 Jan 2011 @ 2:26pm

HIPAA is a complicated law and it does not cover everyone. If you put your medical information up on a non covered entity, they don't have to keep is confidential.

Not all pharmacies give IMS information. There is no IMS data from Walmart. Of course, Walmart might sell the information themselves, but that is their choice. They are selling doctor prescribing information, not information on what drugs you take.

Of course, one time a drug was recalled and the company was trying to figure out who actually received that drug. They looked at the IMS data and realized that the pharmacy patient ID looked like a phone number. Once they realized they had in their system actual identifying information of the person (or household) who took their drug, they deleted it from their systems as that was a violation of the law.
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