Legislators across various states have been reviewing options to curb prescription data mining efforts to stem the tide of complaints from healthcare practitioners. The most recent effort in Vermont was struck down in June by the U.S. Supreme Court in Sorrell v. IMS Health Inc.

The Vermont law was designed to prevent data-miners from examining and selling prescriber identifying information to pharmaceutical companies which used information in their prescription drug marketing efforts.

Physicians may lament the decision as it exposes their patient prescription habits to data-miners and drug companies. The decision also strikes a blow to state government efforts to eliminate data-mining as part of an overall effort to reduce the cost of prescription drugs and to preserve doctor-confidentiality.

The Vermont law failed scrutiny under the First Amendment, however, not because it went too far in restricting speech, but because it did not go far enough. As surprising as that might sound, assuming physicians have a significant interest in keeping their patient prescription decisions confidential, the Supreme Court concluded that the Vermont law did not serve that interest because pharmacies "could share prescriber-identifying information with anyone for any reason except for marketing." Vermont would have furthered physician confidentiality more by narrowly limiting the use of prescription information to specific and justified circumstances. Essentially, by targeting only marketing related speech, the Vermont law drew too narrow a scope. Other states may well revise proposed laws to broaden their scope, preserving doctor patient confidentiality. The Vermont law also failed because it gave physicians the right to consent to the disclosure of prescriber identifying information. If a state's true goal is to preserve doctor patient confidentiality, then the prohibition on its use should not be limited to those who intend to use it for marketing efforts.

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