AARP asked the U.S. Supreme Court to uphold Vermont’s Prescription Confidentiality Law, which was enacted in 2007 in an effort to reduce prescription drug costs. The federal government, 35 states, and organizations representing more than 100,000 doctors, consumer groups, and privacy experts also support Vermont’s efforts to control rising drug costs.
Vermont’s law prohibits pharmacies and insurers from selling (without consent) prescriber’s identifying information or using that information for marketing or promoting prescription drugs. Data mining companies and a trade association of large brand name pharmaceutical companies challenged the law on free speech grounds.
Since the early 1990s, health information companies have bought electronic records of prescriptions and linked them with information about individual doctors, enabling pharmaceutical companies to target doctors for marketing outreach about their brands of drugs. Drug makers dispatch “detailers” to individual doctors, who use prescriber reports compiled by information companies to craft very targeted sales pitches. Studies have shown that this approach results in doctors tending to prescribe newer and more expensive drugs even when the medical evidence reveals that less expensive, older options would be cheaper, equally effective and, in some cases, safer.
Attorneys with AARP Foundation Litigation filed AARP’s “friend of the court” brief asking the court to overturn an appeals court decision invalidating the law. The brief jointly prepared with the Program on Justice and Intellectual Property at American University Law School was also joined by the National Legislative Association on Prescription Drug Prices. In both this litigation (Sorrell v. IMS Health) and in separate litigation in New Hampshire and Maine, AFL worked closely with the state AARP offices that supported enactment of the state laws.
AARP argues that the laws do not restrict or regulate speech, and that, even if they did, they would fall under the long-recognized exemption for commercial speech. States have a substantial interest in controlling medical costs in both the private and public sectors, and in regulating medical practices. Numerous studies and investigations reveal significant, measurable, and increasing influence of direct-to-physician marketing and the adoption of prescribing practices contrary to clinical guidelines and the weight of objective scientific studies. AARP’s brief in this case and other similar cases also detail the pernicious effects of high prices for prescription drugs.
What’s at Stake
The dramatic rise in price of brand-name drugs — an increase that far exceeds the general rate of inflation — is absorbing larger shares of each American’s pocketbook. People with chronic conditions (such as heart disease or depression) often skip some of their prescription medicines because of out-of-pocket cost pressures, and that one in four older persons does not fill all of the prescriptions written by his or her doctor due to cost issues. The consequences are dire and include increased emergency room visits, psychiatric and nursing home admissions, and general decline in health status.
Sorrell v. IMS Health, Inc. has been argued before the U.S. Supreme Court, and a decision is expected out this year.