At the heart of Sorrell v. IMS Health Inc. is whether commercial free speech in mining of pharmaceutical information is hindered by a Vermont law that restricts access to nonpublic prescription drug records, according to questions presented to the court. Before the court Tuesday, IMS attorney Thomas Goldstein argued that governmental restrictions were singling out commercial data mining in health care, as the prescription information could still be accessed by insurers and the government.
“This statute says … do whatever you want to do with this stuff, just don’t do something we disagree with when it comes to the message,” Goldstein said, according to online transcripts.
Responding to questions on commercial free speech from Justice Anthony Kennedy, Department of Justice deputy solicitor general Edwin Kneedler said the state law limiting data miners was akin to restrictions of personal information found in the telemarketing industry.
“It’s very much like a … ‘do not call’ statute … in which people have the right to say: Do not contact me for commercial information, except this [law] is more limited,” Kneedler said, according to online transcripts.
Data mining companies buy, aggregate and package prescription data as a marketing tool for pharmaceutical manufacturers to use with doctors, according to online court documents. Vermont doctors, previously unaware of this practice, successfully lobbied the state for a prescription confidentiality law, which enables prescribers the right to consent prior to submitting information linking them to prescriptions for certain drugs that can be sold or used for marketing.
Data mining companies, with support from the pharmaceutical industry, won a Second Circuit Court case, though that conflicts with two other recent circuit court decision that sided with the health care privacy argument, according to online court documents. The Supreme Court agreed to hear an appeal in this case from the state of Vermont, the first case of its kind involving data mining and commercial free speech.
Scores of online privacy advocates have filed briefs in support of Vermont attorney general William Sorrell in the suit against information services provider IMS Health, which has the backing of similar providers like Source Healthcare Analytics and pro-business groups like the U.S. Chamber of Commerce.
A decision on the case is expected in late June, according to court documents.
To review the questions and proceedings in the case, click here. For a PDF on Tuesday’s arguments, click here.
Justin Kern is senior editor at Information Management and can be reached at justin.kern@sourcemedia.com. Follow him on Twitter at @IMJustinKern.
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