02/23/2011 05:08 pm ET | Updated May 25, 2011

The Supreme Court and the Spying-on-Doctors Industry

Last month, the Supreme Court agreed to review a Vermont law that prohibits the use of prescription data for marketing purposes. If upheld, the law will ban pharmaceutical companies from taking the prescription records they buy from pharmacies and giving them to their sales reps to target doctors.

Vermont legislators assert that this practice drives up prescription costs and violates doctors' privacy. Though similar laws in Maine and New Hampshire were upheld by an appellate court after a challenge by industry, Vermont's was rejected as unconstitutional -- on free speech grounds. Huh?

Let's be clear. This case is about corporate influence over our health care system, not free speech. It boils down to one question: How much influence should pharmaceutical companies have over doctors?

If you've seen the movie Love and Other Drugs, starring Jake Gyllenhaal and Anne Hathaway, you have an idea of the duplicity involved in the profession of pharmaceutical sales rep. While it's true, as the industry insists, that reps provide doctors with important information about new drugs, their real purpose is to boost drug companies' bottom lines by convincing physicians to prescribe their most expensive drugs. The film, which follows a fast-talking salesman and womanizer played by Gyllenhaal, is based on the book Hard Sell, by Jamie Reidy, a former Pfizer and Eli Lilly rep.

In his book, Reidy shows how drug reps woo, mislead, and occasionally even lie to doctors, and that the information about new drugs they provide is often biased. In an interview for a 2006 New Republic article, Reidy told me that prescription data proved "our most effective tool in planning our approach to manipulating doctors." How? Because the data allowed Reidy to know exactly what drugs his doctors were prescribing; if they weren't prescribing his drugs, he'd "hammer" them until they did.

Legislators in Vermont, Maine and New Hampshire listened closely to stories like Reidy's. They concluded that preventing prescription data from being used for marketing would help control drug costs. Since drug costs were straining state budgets, lawmakers asserted that these bills would significantly advance state interests. This last point is key, because in order to restrict commercial speech under the Constitution the bills would need to meet such criteria.

Enter the opposition. The data mining and pharmaceutical companies have fought tooth and nail to prevent these bills from becoming law. (The data-mining companies, who are the plaintiffs in each case, act as middlemen, buying prescription records from pharmacy chains and other sources before selling them to drug companies.) New Hampshire State Rep. Cindy Rosenwald told me that she never saw as many lobbyists as when her bill was being debated in her state legislature. It's not surprising; both industries could lose money as a result of the bills, and a number of other states are considering their own. What may be surprising, however, are the grounds on which the bills are being opposed: free speech.

Since the 1940s, the Supreme Court has recognized a difference in the level of protection the Constitution offers commercial speech (advertising) compared with other speech. Commercial speech is subject to more regulation. Historically, when states have attempted to restrict commercial speech, the Court has allowed it in the name of consumer protection or an overriding public good. This is consistent with Vermont's law: by controlling drug costs and limiting the influence of drug reps (studies have shown that increased time with reps leads doctors to prescribe against their patients' best interests), the state is acting in the public good.

In the end, though, this law has little to do with free speech. None of these laws stop drug companies from advertising their products. They don't even stop drug companies from collecting prescription data (they can still use it for research). The laws simply regulate the way that data is used -- data which many feel should be confidential, anyway. As Judge Sandra Lynch, of the First U.S. Circuit Court of Appeals, wrote in upholding the Maine law, "the statute regulates conduct, not speech, and even if it regulates commercial speech, that regulation satisfies constitutional standards."

So this is a no-brainer for the Supreme Court, right? Wrong. Our current Court under Chief Justice John Roberts has proved one of the most partisan, activist, and corporate friendly Courts in U.S. history. Last year, in Citizens United v. Federal Election Commission, the Court overturned decades of legal precedent by dismantling campaign finance laws and allowing corporations to spend unlimited sums of money to influence elections. And it has recently come to light that Justice Clarence Thomas, who was part of the 5-4 majority in Citizens United, is being investigated by a watchdog group for allegedly receiving an all-expenses paid trip to a four-day retreat hosted by the Koch brothers, political activists who were among the biggest beneficiaries of the Citizen United decision.

The free speech argument in this case is a straw man. What the Supreme Court will decide here is whether corporate interests trump the interests of doctors, patients and the general public. Opening arguments are set for April, with a decision expected in June. Given the track record of this court, I'll give you one guess who they're going to side with.

Cross-posted from

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