Privacy at issue in upcoming Supreme Court case

Privacy professionals may find an upcoming United States Supreme Court case, Sorrell v. IMS Health, to be of interest. Certiorari was granted on January 7, 2011, and both sides are actively engaged in preparing for the case at this time.

Three states (NH, ME and VT) have passed laws making it illegal to distribute or use information about doctors’ prescribing practices for marketing purposes. Companies that collect, analyze and distribute the information have challenged the laws in court, saying such laws harm patients and violate the companies’ First Amendment rights to free speech.

On November 23, 2010, the United States Court of Appeals for the Second Circuit overturned Vermont’s statute, holding that the law violates the First Amendment right to free speech.

, — F.3d —, 2010 WL 4723183 (2d Cir. Nov. 23, 2010). The United States Court of Appeals for the First Circuit had previously upheld the New Hampshire and Maine statutes. See

, 616 F.3d 7 (1st Cir. 2010);

, 550 F.3d 42 (1st Cir. 2008), cert. denied, 129 S. Ct. 2864 (2009). The Supreme Court’s role is to resolve the conflict with these decisions.

This case involves the use of patient-anonymous prescription history information by pharmaceutical companies to promote the use of their medications through such means as “detailing.” Detailing amounts to voluntary discussions between drug company representatives and prescribers; in these discussions, the uses and benefits of particular medications are discussed so that doctors can learn more about the medications and so that the drug companies can learn more about the doctors’ experiences.

Pharmaceutical companies obtain the information used for detailing from publishers such as the respondents in this case, which collect patient-anonymous prescription history data from pharmacies (the information is first “de-identified,” as that term is defined by HIPAA) and then publish the information in reports.

Certain states have grown hostile to the practice of detailing, theorizing that it encourages doctors to prescribe name-brand drugs over generic alternatives, thereby driving up healthcare costs. Rather than seeking to ban the practice directly, Vermont and other states have enacted legislation intended to make detailing less effective by prohibiting the use of prescription-history information for marketing purposes.

Vermont’s statute provides that “[p]harmaceutical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug,” absent the prescriber’s consent. Vt. Stat. Ann. tit. 18, § 4631(d). It does, however, permit the use of prescription-history information for any purpose other than marketing. Id. § 4631(e).

Patient-anonymous prescription-history information is used for a variety of public and private purposes, including clinical research, monitoring and improving drug safety, public health initiatives, measuring and improving health costs, improving quality of care and others.

The Vermont petition for certiorari raises privacy issues, as Vermont analogizes its statute to various laws restricting access to private personal information.

The respondents believe that analogy fails because: 1) pharmacies are required by law to remove all patient-identifying information before transferring prescription-history data, and 2) Vermont’s law does not prohibit the collection of prescription-history information, and it permits the use of such information for any purpose other than promoting a prescription drug.

The case is expected to be heard on April 26, 2011, with a ruling expected in June 2011.