Trial begins for N.H. prescription sale-barring law

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CONCORD, N.H. (AP) – New Hampshire’s first-in-the-nation law restricting medical data companies’ access to doctors’ prescription information went on trial Monday, with a federal judge lecturing a lawyer for the companies about free speech.

The law, which is less than a year old, is intended to protect doctors from high-pressure sales pitches by drug company representatives.

IMS Health Inc. and Verispan LLC, both headquartered in Pennsylvania, filed a complaint last year in U.S. District Court asking that the law be declared unconstitutional.

The companies, which collect, analyze and sell medical data, say the law, which bans the sale, use and distribution of certain prescription information, also would restrict sales of the information for uses that benefit the public, such as scientific research, clinical trials and drug recalls.

Lawyer Tom Julin argued that category deserves the highest free-speech protections, like those afforded to newspapers that publish information they have obtained legally.

But he was cut short by U.S. District Judge Paul Barbadoro.

“Trying to wrap yourself in the mantle of newspaper cases … doesn’t cut it with me,” Barbadoro said.

Even before lawyers for the state and the companies were allowed to present opening statements, Barbadoro laid out his views on what the law says and the legal standards that apply. Barbadoro will decide the case; there is no jury.

Lawmakers in Arizona, Maine, Massachusetts, New York and Vermont have introduced similar legislation, and other states are considering it, according to the National Legislative Association on Prescription Drug Prices.

The law would allow the data companies to sell information sorted by region or medical specialty, but would not allow them to sell data on individual doctors or patients for use by pharmaceutical sales representatives. The data companies are not challenging the provisions involving patient privacy.

The judge said a plain reading of the law shows it only restricts commercial speech, not research or other non-commercial uses of the information.

“That is the only reasonable interpretation a reasonable person could give to the statute,” Barbadoro said.

But Julin said the law goes too far because it punishes the messenger – the data-mining companies – instead of pharmaceutical companies that use aggressive marketing techniques to influence doctors.

“The Legislature has chosen to strike at the weaker sister here,” he said. “You notice the pharmaceutical companies are not here today.”

He also argued that some pharmacies and insurance companies will stop providing the information in the first place because they fear being prosecuted or sued if the drug companies misuse it. That lack of data will hurt medical research and other beneficial uses, Julin said.

“There’s a direct chilling effect that this statute has on the ultimate sources of the information,” he said. “What we’ve seen is these companies clam up – they’re not going to take the risk.”

Barbadoro also chided the state attorney general’s office on a plan to present video testimony by several doctors. The judge said if the doctors were not available for cross-examination, he would disallow their evidence.

“You can’t hide people from me and protect them from questioning by me,” he said. “I’m not a potted plant – I’m an active decider of things.”

He also questioned an argument advanced by some legislators, who said the law would rein in drug costs by making it harder for pharmaceutical sales representatives to persuade doctors to prescribe expensive new drugs in place of equally effective generic remedies.

Some new drugs are better for patients than existing remedies – and doctors are less easily influenced than patients subjected to television advertising, Barbadoro said.

“Do we think it’s better to drive drug companies to television advertising for their drugs, instead of allowing targeted marketing to doctors?” he said. “Why don’t you ban that? That’s much more likely to mislead.”

AP-ES-01-29-07 1759EST

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