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Prescription Project Welcomes U.S. Appeals Court Ruling in “Data-Mining” Case

BOSTON, Nov. 18, 2008 - The Prescription Project today hailed a unanimous decision by the First Circuit Court of Appeals in Boston upholding an important New Hampshire law that protects patients and prescribers from intrusive marketing by pharmaceutical companies.

The First Circuit overturned the District Court ruling on IMS v. Ayotte. In its 148-page decision affirming the first-in-the nation Prescription Confidentiality Act, the Court said the overturned “portions of the law regulate conduct, not speech.”  The decision went on to assert and even if they qualified as protected speech (the Court held they did not), New Hampshire’s restrictions on the use of prescription data would pass “constitutional muster” in regulating that speech. 

The Prescription Project, which filed a friend-of-the-court brief in IMS v. Ayotte, supports efforts like New Hampshire’s to limit a practice commonly known as “data-mining,” a key tactic used by prescription drug companies to tailor their marketing campaigns to individual doctors.  Pharmacies sell prescriber profiles to health information organizations, which in turn sell detailed information about doctors prescribing records to drug companies. The New Hampshire law upheld today prohibits the commercial use of that prescriber data and made way for Maine and Vermont to pass similar laws earlier this year. Maine’s data mining law is also upheld by the First Circuit decision; the Vermont case is still pending before the Second Circuit Court of Appeals.

“The court’s thoughtful decision upholding New Hampshire’s law is great news for patients and their doctors,” said Rob Restuccia, director of the Prescription Project. “The Court has affirmed that intrusive marketing tactics that push the newest and often most expensive drugs are not free speech, and should not be permitted to exist in a regulatory-free environment at the expense of the state and its consumers.”

“This is an important decision for data privacy advocates,” said Sean Fiil-Flynn, Counsel for the public interest amici in the case and Associate Director of the Program on Information Justice and Intellectual Property at the Washington College of Law, American University. “The ramifications of giving companies a First Amendment right to sell data on all of our purchases, travel and activities would be staggering.

"The First Circuit ruled on the side of consumer privacy, admonishing that the First Amendment does not protect every exchange of information from traditional social and economic regulation. It refused to apply the First Amendment to the trading of prescription records for marketing purposes where ‘information itself has become a commodity.’ The court explained that applying the First Amendment to such trade in prescription data ‘stretches the fabric of the First Amendment beyond any rational measure.’”

About The Prescription Project

The Prescription Project is led by Community Catalyst in partnership with the Institute on Medicine as a Profession. Created with The Pew Charitable Trusts, the Project promotes evidence-based prescribing and seeks to eliminate conflicts of interest in medicine caused by pharmaceutical marketing to physicians by working with academic medical centers, and state and federal policymakers. For more information, please visit


The Prescription Project
30 Winter Street
Boston, MA 02108

Posted: November 2008