Oral arguments favor industry in Supreme Court data-mining case

Pharmaceutical CommercePharmaceutical Commerce - March/April 2011

IMS Health, SDI and Wolters Kluwer make a First Amendment argument for access to physicians’ prescribing information

Oral arguments were heard in the case of Sorrell vs. IMS Health on April 26; Sorrell is the Attorney General of Vermont, which, along with Maine and New Hampshire, has passed a law that prohibits access to physicians’ prescribing data unless the physician allows it. IMS Health (Stamford, CT), SDI (now an IMS Health subsidiary) and Wolters Kluwer Pharma Solutions (Bridgewater, NJ) have argued, in lower courts, that this access is a form of “commercial speech” whose prohibition violates a First Amendment right; as well as asserting that the data obtained thereby are crucial to the functioning of the pharma industry and the healthcare system overall. The states have argued that the data is used primarily to track physicians’ use of branded drugs in order to pitch them more effectively to the prescribers, and that physicians have a right to privacy in the physician-patient relationship. Not having such data access, of course, would severely cramp the efforts of IMS Health and others to profit from delivering accurate prescribing trends to their pharma clients.

Court observers noted that many of the questions from the Justices were critical of the state’s efforts to restrict access. Chief Justice John Roberts questioned whether the law has the effect of “censoring what [doctors] can hear to make sure they don’t have full information, so they will do what you [i.e., Vermont] want them to do,” such as prescribing generics.

Many industry groups, including PhRMA, the Assn of National Advertisers and the National Assn. of Manufacturers, have filed amicus curiae briefs in support of IMS Health. Some patient advocacy groups have done so as well, taking the stance that prescribing access helps their patients get the best medicine. On the state’s side, medical societies have supported the restriction. The editors of the AMA Journal wrote in support of the state that “such selling of prescribing data . . . results in the manipulation of physicians’ drug-prescribing practices, unwarranted intrusion into the privacy of the doctor-patient relationship, and an increase in costs at a time when our health care system is under unprecedented financial strain.”

This case is but the latest chapter in the long-running battle between for-profit pharma manufacturers and their customers who question a profit motive in the delivery of healthcare. A key element that has come out of the litigation is that the prescribing data will continue to be allowed to insurers and state regulatory authorities under the Vermont law; in effect, the pharma industry is being restricted from data that others can receive. But here’s one fact to throw into the discussion: when generics are available, their acceptance is nearly instantaneous and nearly universal today. Data from IMS Health’s latest “Use of Medicines” report indicate that “generics efficiency” (i.e., the conversion from branded to generic) is currently 93%, and generics capture over 80% of the market within six months of introduction. (Yes, these data are from IMS Health, a party to the litigation—go ahead and try to refute them.)

A decision is expected by the end of June.

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