Vermont amended its data mining law to avoid constitutional issues that, so far, have undermined similar statutes in other states.

“We are seeking to make some changes so that the law will stand a better chance of passing constitutional muster,” said Vermont assistant attorney general Julie Brill, who worked on the legislation.

An attempt to contain soaring drug costs, the law prevents companies from collecting information on which drugs doctors prescribe most often, and then selling it to pharmaceutical companies.

The amendments came after similar measures were struck down in New Hampshire and, late last year, in Maine. Federal judges—agreeing with data mining firms who had sued the states—found the measures violate the free speech guarantee. Both the ruling to overturn the law in New Hampshire and a preliminary injunction issued by a federal court regarding Maine’s law are on appeal.

Vermont is also a target of the lawsuit. To prevent a similar result, lawmakers suggested the following changes, some of which are part of a new “corrections” bill being proposed to the legislature:

  • The law is not in effect until September 2008, so that opt-in forms can be sent with normal licensing forms. Vermont’s law allows doctors to opt into having their Rx information shared.
  • Brill and others recommended deleting a provision that had required manufacturers to provide physicians who opted into the system with evidence-based information about other products in the same therapeutic class.
  • Some “relatively minor” language changes are being suggested through the corrections bill to the data mining provisions as well as to the consumer fraud section of the statute, which would have allowed Vermont to bring a cause if a manufacturer receives a warning letter from the FDA.

“The changes really focus on the core constitutional issues, remove distractions and will better communicate what the legislature’s intent was,” said Brill.