Another Attempt to Curb the Sale of Prescription Data Comes Up Empty

Last year, the Supreme Court limited the ability of states to regulate the sale of prescription data.  In Sorrell v. IMS Health, the Supreme Court determined that a 2007 Vermont law that effectively banned the sale of prescription data for commercial marketing purposes unless the prescriber consented was an unconstitutional limitation on free speech.  Now another attempt to curb the sale of prescription data for marketing purposes has failed. 

On February 15th, U.S. District Judge Mary McLaughlin in Philadelphia ruled that a pharmacy chain could not be sued under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL) for selling prescription-related information about consumers to pharmaceutical manufacturers and data firms without the consumers’ knowledge or consent.  Arthur Steinberg and Philadelphia Federation of Teachers Health and Welfare Fund v. CVS Caremark Corporation, E.D. Pa., No. 11-2428 (2011).  The suit alleged that CVS Caremark Corporation and CVS Pharmacy, Inc., (collectively “CVS”) violated the UTPCPL and the common law prohibitions against unjust enrichment and invasion of privacy by failing to disclose to consumers that third parties could buy confidential information related to their prescriptions.  The class action had originally been filed in state court, but was removed to federal court by CVS.  The judge’s order dismissed this class action lawsuit with prejudice because the plaintiffs had failed to allege an actionable claim.

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