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Maine Prescription Drug Secrecy Law Doesn't Pass Constitutional Muster, Court Says

Dec 26, 2007 | Parker Waichman LLP

Maine can no longer keep the prescription writing habits of the state’s doctors secret.  A federal judge just ruled that a new Maine law making doctors' prescription-writing habits confidential violates the Constitution. 

U.S. District Judge John Woodcock concluded that the law—which was scheduled to take effect January 1, 2008—would prohibit "the transfer of truthful commercial information" and "violate the free speech guarantee of the First Amendment." The law had been challenged by IMS Health of Norwalk, CN, Wolters Kluwer Health of Conshohocken, PA, and Verispan of Yardley, PA, organizations which collect, analyze, and sell medical data to pharmaceutical companies, government agencies, and researchers.  The companies said the law would prevent the health care community from monitoring the safety of drugs and make it difficult to track defective drugs.  Backers of the measure say it is one of several laws passed by Maine legislators that aim to address high health care and prescription drug costs.  In a decision issued Friday, Woodcock said he relied heavily on an April 30th ruling by U.S. District Judge Paul Barbadoro in New Hampshire that rejected a similar law in which Barbadoro cited unconstitutional free speech restrictions—the decision was appealed in the 1st U.S. Circuit Court of Appeals in Boston.  A similar case is also pending in Vermont.  The primary sponsor of Maine's legislation, Democratic Representative Sharon Treat, said she was disappointed with the ruling and anticipates an appeal.

The suit originated in August in Maine and Vermont federal courts challenged laws making doctors' prescription-writing habits confidential and asked the court to block the states from enforcing their laws, saying the statutes are unconstitutional and citing violations of the 1st Amendment by barring transfer of lawfully obtained information and the 14th Amendment by impeding interstate commerce.  At that time, Maine Attorney General Steven Rowe said the suit was not a surprise, given the legal challenge in New Hampshire, adding, "We will vigorously defend the constitutionality of the law and oppose efforts to have its enforcement enjoined.

The executive director of the Vermont Medical Society, Paul Harrington, said his group "is disappointed that the drug companies are seeking to overturn the law passed in Vermont and Maine.  We feel the laws are appropriate in that they keep the physicians' prescribing information out of the hands of the drug company marketers and curtail the drug companies being able to effectively go into the physicians' offices, having the prescribing information, and tailoring their marketing, knowing what the physician is prescribing.”  The companies say pharmaceutical and biotechnology companies, medical device manufacturers, governmental agencies, and researchers use the information, which is gathered from a variety of sources.  "Without the right to publish prescriber-identifiable data, the healthcare community will lose a powerful tool to help monitor the safety of new medications and ensure that patients taking them are not harmed," according to the original filing, adding that the laws go against a national trend toward greater transparency in health care practices.  The protection of patient confidentiality has not been at issue in the legal challenges; plaintiffs take issue with what they claim are special protections for doctors created by the Maine and Vermont statutes.


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