CA1: data-mined prescription information not protected speech

IMS Health, Inc. v. Ayotte, No. 07-1945.  This is a big case.  Essentially pharmaceutical salespeople were using doctors prescription histories (in databases) to generate sales leads and shape their sales pitches.  Then, New Hampshire said that was a bad idea and enacted N.H. Rev. Stat. Ann. §§ 318:47-f, 318:47-g, 318-B:12(IV) (2006) (the Prescription Information Law).   The District Court said it infringed upon speech.  The First says, on the other hand that this law regulates conduct, not speech under, and therefore the statute passes constitution muster.

The First makes a few good points: consumers are not really benefitting from this dissemination of information (because doctors know what drugs they are telling people to take), and New Hampshire was doing its best to try and stabilize drug costs.  The First notes that there are non-commercial uses for these databases that are fairly benign, but includes “law enforcement agencies” as being benign.  It also notes that every year drug salespeople give out a billion dollars in free samples and “the average primary care physician interacts with no fewer than twenty-eight detailers each week and the average specialist interacts with fourteen.”

Now, today I ready that half of all doctors want to quit.  They say that they don’t like the paperwork.  Of course, in private, they say that they don’t like their patients.