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Supreme Court urged to invalidate data law

A coalition of parties, including PhRMA, is asking the US Supreme Court to invalidate a state law that curtails the use of a physician's prescribing history in pharma marketing

A coalition of parties ranging from the US Chamber of Commerce to Pharmaceutical Research and Manufacturers of America (PhRMA) is asking the US Supreme Court to invalidate a state law that curtails the use of a physician's prescribing history in pharmaceutical marketing by regulating data-mining companies that sell or use doctors' prescribing records containing personal information on patients.

Made up of more than 50 organisations and individuals, the coalition has filed 16 amicus briefs with the nation's highest court regarding Sorrell v. IMS Health, which centres around the constitutionality of a 2007 Vermont law banning marketing use of the physician data unless the doctor gives his or her permission. That law, which now will be ruled upon by the Supreme Court, was invalidated by a Court of Appeals decision on the ground that it violated the First Amendment by banning the voluntary exchange of truthful information on a matter of public importance.

Vermont petitioned the Supreme Court to review the case, emphasising in part that the decision invalidating the law diverged from other rulings in similar cases and that there is a need for consistency across states. The case is due to be heard at the Supreme Court on April 26, and a decision is expected by the end of June.

The Vermont statute "makes it harder, not easier, for healthcare professionals to identify and reduce the substantial variations that exist in the delivery of healthcare services and the considerable health disparities that affect the lives of many Americans," according to an amicus brief signed by two former US Secretaries of Health and Human Services, Dr Louis W Sullivan and Governor Tommy Thompson.

A number of stakeholders outside the healthcare arena – including Associated Press, Bloomberg, Hearst Corporation, McGraw-Hill, and the Reporters' Committee for Freedom of the Press – have filed amicus briefs because of their concerns that the law could be used as precedent for limiting other kinds of use and analysis of computerised data.

Other filers include academic researchers; patient groups like the National Organization for Rare Diseases; the American Advertising Federation; and the National Association of Manufacturers.

However, Vermont's attorney general, William Sorrell, argues that the law is necessary to protect doctors' privacy. "Vermont doctors pressed for this law because of their concerns about privacy and because they view this data-mining practice as an intrusion into the way doctors practice medicine," he said in a statement.

"We look forward to defending this important law in the Supreme Court."

4th April 2011

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