WASHINGTON — Government lawyers defending limits on the marketing of new drugs ran into sharply skeptical questions at the Supreme Court from conservative justices who said the First Amendment protects the free-speech rights of the drugmakers to market their products directly to doctors.
At issue is whether states can forbid pharmacies from selling to drugmakers the confidential prescription records of physicians. Armed with this information, drug company salesmen have targeted doctors who are not prescribing the newest and most costly brand-name drugs.
A Vermont state lawyer, backed by the Obama administration, argued no one has a First Amendment right to this “inside information.” But Chief Justice John Roberts said the state was “censoring” the message of the drug company sales representatives.
If doctors do not wish to hear from representatives, they should say, “I don’t want to talk to you,” added Justice Antonin Scalia.
The high court argument cast doubt on the fate of recent laws adopted in three New England states and also considered by dozens of others. The privacy of patients is protected by law, but the same is not true for physicians and the prescriptions they write.
In the past decade, data mining firms have turned this information into a billion-dollar-a- year business.
Vermont’s doctors were surprised to learn their confidential prescription records were being sold. “They thought this compromised the physician-patient relationship and that it was driving up the cost of pharmaceuticals,” said Paul Harrington, executive vice president of the Vermont Medical Society.
Vermont’s lawmakers in 2007 prohibited pharmacies or insurers from “selling” prescription records for the “marketing or promoting” of drugs.
