IMS and SDI petition Supreme Court for judicial review

US-- Healthcare data firms IMS Health and SDI petitioned the Supreme Court today to review an appeals court ruling that restricts the use of physician prescribing information for marketing purposes.

IMS and SDI are seeking to overturn the decision of the First Circuit Court of Appeals after they upheld a New Hampshire law that had previously been blocked on free speech grounds.

In a 148-page ruling last year, the appeals court judges said: “We are not persuaded that the regulated data transfers embody restrictions on protected speech… In our view, the portions of the law at issue here regulate conduct, not speech.”

But IMS general counsel Robert Steinfeld said that decision “jeopardises both speech and commerce, including market research, data collection and dissemination, financial analysis, consumer studies, credit verification, and important publishing activities”.

The data firms have the backing of Rodney Smolla, dean of the Washington and Lee University Law School. He said: “Our constitutional principles recognise that commerce and speech are inextricably linked. The sale of data in this case should have been entitled to the full measure of constitutional protection that shelters the distribution of truthful information.

“These companies service the free flow of information by gathering and synthesising data and then selling that data to those who find it valuable. Vast arenas of our economy and culture are built around such sales. We should not choke off these useful enterprises.”

New Hampshire's legislation was intended to drive down healthcare costs by protecting doctors from high-pressure sales pitches made by drugs company representatives who come armed with detailed information on the physician's prescribing practices.

However IMS and SDI have long-argued that the law would ultimately “restrict the flow of prescriber information that is essential to improving the quality of healthcare and ensuring patient safety”.

Restrictions similar to those in New Hampshire could soon become law in Maine and Vermont, while a proposed law in Colorado was recently struck down.

The Supreme Court is expected to decide before its summer recess in July whether to initiate a judicial review of the appeals court decision.

Author: Brian Tarran