Second Circuit Court of Appeals Finds Vermont Prescriber Data-Restriction Law Unconstitutional


On November 23, 2010, the U.S. Court of Appeals for the Second Circuit dealt a blow to a controversial public policy trend in which states are restricting the use of information about physician prescribing habits in pharmaceutical marketing.

States like New Hampshire, Maine, and Vermont, all of which have prescriber data-restriction laws, contend that the laws advance their states’ interests in protecting public health, protecting the privacy of prescribers and prescribing information, and in containing prescription drug costs. But many health care quality advocates believe that the laws could have the unintended consequence of stifling quality-improvement efforts that rely on the free flow of patient de-identified health care information.

When filling prescriptions, pharmacies in Vermont collect information, including the prescriber’s name and address, the name, dosage, and quantity of the drug, the date and place the prescription is filled, and the patient’s age and gender. Pharmacies sell this prescriber-identifiable data to data-mining companies that aggregate it to reveal individual physician prescribing patterns and sell it primarily to pharmaceutical manufacturers. The data is stripped of patient information, to protect patient privacy.

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