Federal Appeals Court Upholds New Hampshire Law Prohibiting Sales of Physicians’ Prescribing Histories

The 1st U.S. Circuit Court of Appeals in Boston on Tuesday upheld a New Hampshire law prohibiting the sale of information about physicians' prescribing practices for use in prescription drug marketing, the AP/Lexington Herald-Leader reports (Love, AP/Lexington Herald-Leader, 11/18). The New Hampshire law is intended to reduce state health care costs by removing the tools that pharmaceutical representatives use to target physicians to promote brand-name drugs (Saul, New York Times, 11/19). The law prohibits pharmacies, pharmacy benefit managers, insurance companies and data-mining companies that collect and analyze prescription information from selling or using that information for commercial purposes (AP/Lexington Herald-Leader, 11/18).

The decision by the three-judge panel overturns a 2007 ruling by U.S. District Judge Paul Barbadoro of Concord, N.H., who said the law violated the First Amendment. Data-mining companies IMS Health and Verispan had argued that the law infringed on commercial free speech and that the collection of prescription drug information was valuable for public health.

In the decision on Tuesday, U.S. Court of Appeals Judge Bruce Marshall Selya wrote that the reselling of prescription information is "mind-boggling" in its scope, adding, "The record contains substantial evidence that, in several instances, [drug company representatives] armed with prescribing histories encourage the overzealous prescription of more costly brand-name drugs regardless of both the public health consequences and the probable outcome of a sensible cost/benefit analysis." The appeals court wrote that "the state adequately demonstrated that the Prescription Information Law is reasonably calculated to advance its substantial interest in reducing overall health care costs within New Hampshire."

According to the Times, Tuesday's decision could have implications in other states that have or are considering similar laws. New Hampshire State Rep. Cindy Rosenwald (D), who sponsored the legislation, said, "A lot of states have been looking at this and have come very close to enacting it and then they've basically said while this is still on appeal, we should just wait" (New York Times, 11/19).