New Hampshire's Failed Attempt

Tuesday, May 22, 2007

The law: Banned the sale or use of data on individual doctors' prescribing choices for marketing and other commercial purposes, while allowing it for research, law enforcement and patient education. The goal was to protect physician privacy and reduce health-care costs.

The challenge: Data-mining firms said the law unconstitutionally restricted free speech. They cited previous rulings that commercial speech cannot be restricted unless the restriction advances a "substantial government interest" and is narrowly crafted.

The defense: New Hampshire argued that information is not speech, and even if it is, the statute was tightly drawn to serve the "substantial" state interests of protecting privacy, promoting public health and curtailing costs.

The decision: U.S. District Judge Paul J. Barbadoro ruled that the law curbed commercial speech because it "restricts the transmission of truthful information" about prescribing practices, limiting companies' ability to communicate with doctors; the ban was not narrow because it blocked marketing messages even when brand-name drugs were superior; the state did not have a substantial interest in preventing the dissemination of truthful information; and the state had other remedies, such as putting out competing information.

SOURCE: IMS Health Inc. et al. v. State of New Hampshire

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