U.S. SC rejects challenge to N.H. prescription privacy law

By John O'Brien | Jul 17, 2009


WASHINGTON (Legal Newsline) - The U.S. Supreme Court recently decided not to hear an appeal that sought to overturn a New Hampshire law against the collection and disclosure of the prescribing practices of physicians.

The justices denied the appeal of IMS Health, Inc., and Verispan June 28, cementing a November decision from the U.S. Court of Appeals for the 1st Circuit. New Hampshire Attorney General Kelly Ayotte successfully defended the law.

Ayotte's last day of work as attorney general is Friday. She is planning a run for U.S. Senate.

Critics of the Prescription Information Law, which took effect in 2006, say it violated First Amendment rights.

"In our view, the portions of the law at issue here regulate conduct, not speech," the November decision said.

"Unlike stereotypical commercial speech, new information is not filtered into the marketplace with the possibility of stimulating better informed consumer choices (after all, physicians already know their own prescribing histories) and the societal benefits flowing from the prohibited transactions pale in comparison to the negative externalities produced.

"This unusual combination of features removes the challenged portions of the statute from the proscriptions of the First Amendment."

The Washington Legal Foundation filed an amicus brief urging the U.S. Supreme Court to review the decision.

"New Hampshire is virtually alone in prohibiting the dissemination of information about doctors' prescribing patterns," WLF Chief Counsel Richard Samp said.

"A handful of legislators seems to think that laws of this sort hold down Medicaid costs. But if more such laws are adopted, the loser will be the American healthcare system.

"The information that New Hampshire is trying to ban plays a vital role in health care; it is used to monitor the safety of medications, implement drug recalls, and rapidly communicate information to doctors about innovative new treatments," Samp said.

The trial court had found the law unconstitutional before the appeals court reversed it.

"Consumers can be assured that when they fill a prescription at their local pharmacy, the information contained in that prescription will not subsequently be sold to data mining companies for commercial purposes," Ayotte said in November.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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