Vermont court upholds commercial data ban

A federal court in Vermont quashed the efforts of several marketing research firms to overturn a statewide ban that restricts the use of prescriber-identifiable (PI) data. 

The ban, which prohibits companies from "selling or using PI data for marketing or promoting prescription drugs unless the prescriber consents [by opting-in]," is scheduled to become effective July 1, 2009.

Cathy Betz, VP, government affairs at Wolters Kluwer Health, said the company is "evaluating its legal options, which may include an appeal of Judge Murtha's decision with the Second Circuit Court of Appeals, as well as seek an injunction against the law's implementation...pending the appeal review."

Unlike IMS Health vs. Ayotte in New Hampshire, the Vermont decision does view PI data as protected commercial speech. However, the court upheld the "opt-in" provision—the meat of the ban—citing an allowance for restriction if it a) supports a substantial government interest; b) directly advances the asserted interest; and c) is not more extensive than is necessary to serve that interest.

"The law is sustainable on cost containment and public health interests, which are substantial," the court decided. 

Betz disputed the court's suggestion that the use of PI data leads to higher costs. 

"There is no evidence—empirical or otherwise—that the specific use of PI information for commercial purposes increases healthcare costs," said Betz. "Likewise, assertions that these data are used to influence physicians to prescribe only more expensive brand name drugs are unfounded," she said. 

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