New Hampshire ban on sale of prescribing data is overruled

Despite the federal court ruling, Maine and Vermont are close to enacting laws that let doctors choose whether to share their data with drug reps.

By Kevin B. O'Reilly, AMNews staff. May 28, 2007.

A federal judge late last month ruled that a New Hampshire law banning the sale of physicians' prescribing data to drugmakers for use in detailing is an unconstitutional infringement on commercial free speech rights.

U.S. District Judge Paul Barbadoro wrote in his ruling that the law "restricts speech by preventing pharmaceutical companies from using prescriber-identifiable information both to identify a specific audience for their marketing efforts and to refine their marketing messages."

Barbadoro found that physicians do not have a right to keep their prescribing data secret. He said there was little evidence presented to show that drug reps use the information to harass doctors. Also, the New Hampshire law does not distinguish between truthful and misleading detailing and attempted to blunt all drug reps' speech by restricting data sharing, he said.

The ruling puzzled one physician who has written about the issue.

"It seems like a very strange construction of the First Amendment to consider the sale of data about a doctor's prescribing as a kind of free speech," said Jerry Avorn, MD, author of Powerful Medicine: The Benefits, Risks, and Costs of Prescription Drugs and a professor of medicine at Harvard Medical School.

Eugene Volokh, a law professor at the University of California, Los Angeles, whose work was cited in the court's decision, said data might not seem to be speech, but it ultimately contributes to expression. "Data is a fancy way of saying information, and the communication of information is what speech is all about," he said.