A new Vermont law restricting the drug industry’s use of data on doctors’ drug prescribing habits is facing a federal lawsuit and a new round of scrutiny.
The law, which was amended in the waning days of last year’s legislative session after a federal court struck down a similar measure in New Hampshire, contains several provisions aimed at slowing cost increases for prescription drugs.
One target of the measure was companies that gather information on which drugs doctors prescribe most often and then sell that information to pharmaceutical companies. The information allows the drug companies to develop sophisticated sales pitches, called “detailing,” to entice doctors to switch to their medications, said Julie Brill, an assistant attorney general who worked on the legislation.
Brill called the so-called “data-mining” restrictions “one piece of a larger effort by the state to ensure that marketing that goes on with respect to pharmaceutical products is appropriate and … also to protect the privacy concerns prescribers have.”
Brill and Rep. Steven Maier, D-Middlebury, chairman of the House Health Care Committee, which takes up the issue Thursday, argued that without the restrictions, drug companies maximize their profits and jack up health care costs by getting doctors to prescribe the newest, most expensive medications.
Companies that specialize in data-mining call the restrictions a violation of the First Amendment guarantee of free speech, and have sued to overturn them in the three states that have passed such laws to date: New Hampshire, Vermont and Maine.
“These laws undermine the flow and dissemination of new drugs to doctors so fewer patients get them,” said Randy Frankel, vice president of the Connecticut-based data-mining firm IMS Health, one of the firms suing Vermont.
The New Hampshire federal court decision overturning that state’s law and a preliminary injunction issued by a federal court in Maine blocking that state’s law from taking effect are on appeal at the 1st U.S. Circuit Court of Appeals in Boston.
Now, Vermont is scrambling to avoid a similar fate:
The law was to take effect Jan. 1, but the state attorney general decided in September to delay implementation by at least a year, to September 2008. U.S. District Judge J. Garvan Murtha then balked at issuing a preliminary injunction against it.
The attorney general’s office has drafted proposed changes designed to deny ammunition to the law’s critics. Among them: deleting a section requiring drug salespeople to disclose when a competitor might have a cheaper alternative to the medication they are peddling.
“We think the proposals we’ve made are consistent with what the Legislature was intending to do last spring,” Attorney General William Sorrell said. “And if they strengthen the arguments we make in the litigation, in the lawsuit, we think that makes sense.”
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