'Data mining' for drug companies goes to courts

MONTPELIER, Vt. -- The prescription drugs you take are on the minds of a lot of people: judges on two federal courts, legislators in several states, countless doctors and, at the center, the companies that make money by figuring out who's prescribing what.

"Data-mining" firms -- which gather electronic information on the drugs prescribers order for their patients, then sell that information to pharmaceutical companies -- have sued to block laws restricting their activities in New Hampshire, Maine and Vermont.

At issue is the use by drug company "detailers" -- the sales force that deals with doctors and other prescribers and tries to get them to use the company's products -- of the information about doctors' prescribing habits.

If, for example, a doctor usually uses one company's antidepressant drug instead of another's, that can be valuable information for a detailer trying to get the doctor to switch.

In upholding the New Hampshire law, 1st U.S. Circuit Court of Appeals in Boston found the result of the activity is often higher drug costs, because the detailer usually is trying to steer the prescriber toward the newest, most expensive, medicines.

The data mining companies are set to appear Tuesday at the 2nd U.S. Circuit Court of Appeals in New York to ask a three-judge panel to block Vermont's law from taking effect July 1.

And the U.S. Supreme Court is expected to decide by the end of the month whether to hear the data-mining companies' appeal of the Boston court's decision on the New Hampshire law.

The Boston court has put a separate Maine case on hold until New Hampshire's is resolved.

The issue has come up in more than 20 state legislatures, advocates on both sides said.

Randy Frankel, vice president for external affairs at IMS Health, said restricting the ability of his and similar companies to collect doctors' prescribing data could hurt more than just commercial activity.

The data also are used to help law enforcement track when narcotic drug prescriptions spike; they help academic and government researchers follow drug safety and help aim information at doctors prescribing a drug when new side effects or other issues crop up, Frankel said.

"These data have enormous value to the public good," he said.

Maine state Rep. Sharon Treat, D-Hallowell, head of a national group of lawmakers following drug issues, said the data-mining companies' "bread and butter" is selling the information to drug companies to bolster their marketing efforts.

The more that doctors are urged to use expensive drugs rather than generics, the less money there is to spread around to deliver the most health care to the most people, Treat said. She argued that's a bad idea when many states are cutting people from public and subsidized health programs in budget-cutting moves.

The data companies, IMS Health Inc. and SDI, argue that restricting the data collection and use violates their and the drug companies' First Amendment free speech rights to collect and use the information.

But the Boston court rejected the First Amendment argument, saying the issue was less a matter of speech than of conduct. In both that court and the U.S. District Court in Vermont, judges ruled that commercial speech can be regulated without violating the First Amendment, and that what the data-mining companies were doing fell into that category.

Treat concurred that "this isn't about speech. They're trying to change behavior" -- the behavior of health providers in deciding which kinds of drugs to prescribe.

"That's what it's all about," Treat said. "What it's not about necessarily is good health care."

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On the Net:

National Legislative Association on Prescription Drug Prices: http://tinyurl.com/mxn8ab