A federal appeals court has overturned a lower court's injunction of New Hampshire's ban on commercial provision of prescription data, arguing that such restrictions do not constitute an abridgment of free speech.
Writing for the US Court of Appeals for the First Circuit, Judge Bruce Selya said: “We are not persuaded that the regulated data transfers embody restrictions on protected speech.”
“Unlike stereotypical commercial speech,” he added, “new information is not filtered into the marketplace with the possibility of stimulating a better informed consumer choice (after all, physicians already know their own prescribing histories) and the societal benefits flowing from the prohibited transactions pale in comparison to the negative externalities produced.”
Two data companies, IMS Health and Verispan (now part of SDI), sued for an injunction against a New Hampshire law prohibiting the sale of prescribing data for use in pharmaceutical detailing, arguing that it violated their First Amendment rights. A US district court agreed with them.
The decision overturns the district court injunction and opens the door to similar laws already on the books in Vermont and Maine and pending in two dozen more states.
In a joint statement, the data companies expressed disappointment with the decision and said they were evaluating potential next steps.