Round three for IMS in battle of New Hampshire

US-- IMS Health's fight against a New Hampshire law that would block drug makers from using physician prescribing information for marketing purposes has moved into round three, after an appeals court overturned an earlier decision to strike down the law.

The First Circuit Court of Appeals said it disagreed with the federal court ruling last year that the legislation “unconstitutionally restricted speech without directly serving the state's substantial interests”.

In a 148-page ruling, 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.”

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, along with rival healthcare data firm Verispan (now owned by SDI), claim the law would ultimately “restrict the flow of prescriber information that is essential to improving the quality of healthcare and ensuring patient safety”.

Following the appeals court decision, IMS and SDI said they were “disappointed”.

Yesterday they filed a petition for a rehearing. They argued: “By upholding an unprecedented state law banning truthful, non-misleading speech, the decision leaves the state and insurers free to pressure doctors to prescribe older, cheaper drugs, while it hobbles drug manufacturers' efforts to provide their competing views that newer, improved drugs better serve patient health.”

IMS and Verispan have also challenged similar laws in Maine and Vermont.

An injunction against the Maine statute is in place for now – but as Maine is also in the First Circuit, the New Hampshire decision will be binding in the state as well. In Vermont, a decision on the legal challenge is expected early next year.

Author: Brian Tarran