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Drug "Data Mining" Appeal Goes Before Vermont Court

Wed, 06/24/2009 - 4:35am
LARRY NEUMEISTER Associated Press Writer NEW YORK (AP) — So-called data-mining companies that collect information about the drugs doctors prescribe asked an appeals court Tuesday to stop Vermont from enacting a law next week restricting their work. Attorney Thomas Julin told a three-judge panel of the 2nd U.S. Circuit Court of Appeals that it would violate the First Amendment rights of the companies if the law is enacted on July 1. He asked the appeals court to block implementation of the law until it decides whether to uphold a lower court ruling that concluded the law did not violate the Constitution. Both sides were expected to submit written arguments in the wider appeal case within two months. The court did not immediately rule, but Judge Barrington Parker called it a fascinating case. Julin, representing IMS Health Inc., Verispan LLC and Source Healthcare Analytics Inc., told the judges that information gathered by the companies is noncommercial speech protected by the First Amendment. He said the companies are the world's leading publishers of information regarding the pharmaceutical and health care industries. The companies gather electronic information on drugs ordered by doctors for their patients and sell that information to pharmaceutical companies. In court papers, they said they also publish unique reports — "a form of specialized news reporting" — showing which doctors prescribe which medications most frequently. In separate courts, the companies have tried to block laws restricting their activities in New Hampshire, Maine and Vermont. More than 20 state legislatures have looked at the issue, advocates on both sides say.Bridget Asay, an assistant attorney general, urged the appeals judges to let the law take effect, saying no substantial First Amendment issues were at stake. She called the work done by the companies a "covert marketing tool." In court papers, she said blocking the law's enforcement was a drastic measure not necessary after a court fight that has already stretched 20 months. She said Vermont's Prescription Confidentiality Law regulates commercial marketing of certain health care records to promote public health, medical privacy and to contain health care costs. She said the state had proven that data marketed by the companies led to higher health care costs and contributed to inappropriate prescribing decisions. Outside court, Julin said the state cannot prove that the law will save health care costs. "The law likely backfires and drives up health care costs," he said. The 1st U.S. Circuit Court of Appeals in Boston has already upheld the New Hampshire law, a ruling that the companies have asked the U.S. Supreme Court to review.
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