The High Court heard a case yesterday which is being argued on First Amendment grounds. The case arises from the practice of so-called "Data Mining" companies collecting the prescription history of doctors and then aggregating that information and selling it to pharmaceutical companies, who then use it to target market of drugs to specific doctors.
Now, the patients who receive these prescriptions are not known, just that that prescription was written and filled. The State of Vermont passed a law (as well as New Hampshire and a couple of other states) that prohibited this practice. They were taken to court by the data mining companies with the support of the pharmaceutical manufacturers.
Vermont created a law that requires that doctors consent to having this kind of information sold by pharmacies and data mining companies. The State admitted that part of the move to do so was an attempt to control costs. When doctors receive a barrage of marketing about name brand drugs, they are more likely to prescribe them, even if there is a generic that is just as effective. The desire to see more low cost prescriptions is the states interest in this and where they are likely to be in trouble with the High Court
Justice Ruth Bader-Ginsburg asked:
And if that's the purpose, why doesn't that run up against what this court has said - that you can't lower the decibel level of one speaker so that another speaker, in this case the generics, can be heard better?"
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