IMS Health and SDI are seeking a Supreme Court review of a ruling that restricts the commercial use of prescriber data in the state of New Hampshire.
The companies filed a joint petition for a writ of certiorari – a Supreme Court review – of IMS Health vs. Ayotte, a federal appeals court case that overturned a district court decision allowing the commercial use of prescriber data. Both cases hinged on New Hampshire's Prescription Information Law (PIL), enacted in July of 2006. The PIL makes it a crime for a pharmacy, insurer, or similar entity to transfer or use prescription data for the purposes of “any activity that could be used to influence sales or market share of a pharmaceutical product.” IMS Health and SDI's request for a rehearing was denied in January.
IMS Health utilizes prescriber-identifiable data, or information that contains the identity of a prescriber. SDI uses de-identifed patient level data, or patient data that strips individual patient information such as name, address, and social security number (in accordance with HIPAA), but provides information about the patient's practitioner, pharmacy, product or payer, according to an SDI spokesperson.
New Hampshire's PIL essentially blocks IMS Health and SDI from gathering prescriber data from the state, which the companies would sell elsewhere. That amounts to an abridgement of free speech, according to the petition. “The First Circuit's conclusion that the truthful factual information at issue here lacks First Amendment protection because of its commercial or medical context flies in the face of settled free speech principles,” the petition said. The Supreme Court is expected to decide whether it will take up the case before its summer recess in July, according to an IMS Health statement.
Other states, such as Vermont and Maine, have restricted the use of prescriber data, but allow for physicians to opt in (Vermont) or opt out (Maine).