Supreme Court shrugs at NH prescription data ban

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The Supreme Court will not take on a New Hampshire data ban originally enacted in 2006, overturned 10 months later by a district court, and then reinstated by a federal appeals court last November.


In April, IMS Health and SDI's Verispan asked the Supreme Court to weigh in on the constitutional validity of New Hampshire's Prescription Information Law, arguing that prescriber-identifiable (PI) data is protected commercial speech under the First Amendment. 
According to Richard Head, associate attorney general in New Hampshire, PI data enhances a sales rep's ability to shift a physician's prescribing behavior toward a branded drug, when a generic may be more appropriate.

"Driving physicians away from an equally effective generic toward a branded drug has the obvious effect of increasing healthcare costs related to prescription drugs," said Head. "Older drugs that have been tested, that have a safety record, are now being bypassed for heavily marketed brand drugs." He added that new drugs without an equally effective generic should be prescribed based on "evidence-based information...not specifically tailored advertising.

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Philip Oliva, director of external affairs at IMS Health, said the notion that prescriber and patient-level data drives up healthcare costs is "not reality." According to Oliva, at least 70% of all prescriptions are for generics, with drug prices accounting for only one-tenth of overall healthcare costs.
The Supreme Court's refusal to hear the New Hampshire case came just one day before Vermont's data ban went into effect, on July 1.

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