A federal appeals court reversed a district court ruling that limited the use of prescriber-identifiable data in Vermont, signaling a victory for plaintiffs IMS Health, SDI and Wolters Kluwer Health, and setting up a possible Supreme Court showdown.
Vermont's data ban, which made it illegal to gather and sell information about a physician's prescribing habits without his or her consent, was overturned in part because it “does not directly advance the substantial state interests asserted by Vermont,” wrote District Judge John Koeltl, in the ruling.
These include “protecting the public health,” “protecting the privacy of prescriber and prescribing information,” and “ensuring [healthcare] costs are contained.
The Vermont ruling, decided by the 2nd US Circuit Court of Appeals, runs counter to a 1st US Circuit Court of Appeals decision in 2008, which examined a similar data ban in New Hampshire. The Supreme Court declined to hear plaintiff arguments about the NH data ban.
Based on the variety of court rulings in New Hampshire, Maine, and Vermont—the only three states that have passed laws banning prescriber data—the jury is still out on whether prescriber data qualifies as protected commercial speech under the First Amendment, without caveat.
“We have a split between the 1st and 2nd Circuits now, perhaps increasing the chances of a review by the US Supreme Court of these fundamental First Amendment issues,” said Cathy Betz, VP, government affairs at Wolters Kluwer Health.