Data Mining: Supreme Court Refuses to Hear IMS Appeal of New Hampshire Law

According to the Rutland Herald and IMS Health,  on Monday, June 29, 2009, the United States Supreme Court denied granting writ of certiorari (refused to hear) in the case of IMS Health vs. Ayotte, the U.S. Court of Appeals First Circuit ruling that upheld a New Hampshire law restricting the commercial use of prescriber-identifiable data.

 

That decision reversed a lower court’s decision that had previously ruled such restrictions were in violation of the First Amendment’s protection of commercial speech. The appellate court, instead, ruled that the First Amendment afforded no such protection to the gathering, analysis or publication of data for commercial purposes, and that restriction of such data was not an abridgment of free speech. With the U.S. Supreme Court declining to review, that decision stands and the New Hampshire law remains in effect.

 

This decision denies access to vital information for prescription drug marketers and has effects on such FDA mandated practices as REM’s programs and warning letters to prescribers.     

 

It is worth noting that one of the largest beneficiaries from the sale of prescription data information is the American Medical Association and for the most part they have been quite on this issue.

 

The courts may yet pick up this case next year if there becomes a circuit split decision with the Vermont case currently working its way through the courts. So, this is not necessarily the last time we will hear about this case.

Now with this decision state legislatures will be empowered to pass data mining restrictions as a competition will ensue.

 

Links to documents from IMS

 

HB 1346 Blocks Access to Critical Healthcare Information

·         Appeals Court Ruling Severely Undermines Speech Rights

·         Joint Statement by IMS and SDI re: Rehearing of Appeals Court Decision on New Hampshire Prescription Info Law

·         Joint Statement by IMS and SDI re: Appeals Court Decision Overturning Federal Court Rejection of New Hampshire Prescription Info Law

·         Joint Statement by IMS and Verispan re: New Hampshire's Appeal of Federal Court Rejection of Prescription Info Law

·         Press Release:  New Hampshire Law Banning Commercial Use of Prescription Information Declared Unconstitutional

·         Final Order on Legal Complaint Filed by IMS and Verispan

·         Final Legislation: HB 1346

·         Legal Complaint Filed by IMS and Verispan

·         Press Release: Companies File Suit Challenging New Hampshire Law

·         Independent Experts Available to Discuss Implications of HB 1346

·         Position Paper: HB 1346 is Wrong Prescription for New Hampshire

·         Press Release: Washington Legal Foundation

·         Working Paper: Washington Legal Foundation - The 1st Amendment and Prescriber Identifiable Data

Prescription Information Benefits Public Health

·         News Release: Information Policy Institute Finds Restrictions on Provider-Identified Healthcare Data Are Anti-Competitive and Will Not Lower Drug Prices

·         Case Studies: Issues and Outcomes

·         IMS Health IQ: Evidence-Based Healthcare

·         IMS Commitment to Information Stewardship

Physicians Control Prescribing Decisions

·         AMA Position Paper: Restriction of Prescription Data

·         AMA Prescribing Data Restriction Program: Article in Pharmaceutical Executive

Amicus Briefs in Support of Plaintiffs (IMS and Verispan)

·         Brief of AMICI CURIAE eHealth Initiative, National Alliance for Health Information Technology, and Surescripts, LLC

·         Amicus Curiae Brief - Washington Legal Foundation

·         Amicus Curiae Brief - Coalition for Healthcare Communications

·         Amicus Curiae Brief - Wolters Kluwer Health

·         Amicus Brief - The National Association of Chain Drug Stores

·         Amicus Brief - Wolters Kluwer Health

·         Amicus Brief - eHI-NAHIT - SureScripts

·         Amicus Brief - Coalition for Healthcare Communications

·         Amicus Brief - NACDS

·         Amicus Brief - Washington Legal Foundation

Media Coverage

·         The Battle of New Hampshire

·         New Hampshire Union Leader - “New Hampshire Gets an Overdose of Unintended Consequences” – By Fred Cate, Professor, Indiana University School of Law-Bloomington

·         Pharmaceutical Executive Direct - “Prescribing Data: It’s a Matter of Free Speech” - By Beth Herskovits, Pharmaceutical Executive Direct

·         Pharmaceutical Executive - “From the Editor: Undecided.” By Patrick Clinton, Editor, Pharmaceutical Executive

·         New Hampshire Business Review - “The Wrong Prescription for N.H.” – By John Kamp, Executive Director, Coalition for Healthcare Communications, New York, New York

·         Pharmaceutical Executive - “Freedom of Information: IMS and Verispan sue New Hampshire to buy prescriber data—and to protect the data sellers’ free-speech rights.” – By Beth Herskovits, Pharmaceutical Executive

FDA Advertising & Promotion Manual - “Companies Challenge New Hampshire Data Law"