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Drug industry takes aim at prescription law

The drug industry goes to court Monday court to challenge a New Hampshire law -- the first in the nation -- that bans the commercial use of information on what drugs physicians prescribe.
/ Source: Reuters

Psychiatrist Marc Sadowsky recalled being shocked when a drug-company salesman challenged him two years ago to explain why he prescribed more of one type of antidepressant than another.

“He knew more about my prescribing practices than I did,” he said.

Sadowsky will testify next week in defense of a New Hampshire law -- the first in the nation -- that bans the commercial use of information on what drugs physicians prescribe.

IMS Health and Verispan, two companies that collect prescription data from pharmacies and sell it to drug makers, researchers and investment firms, are challenging the law.

The case begins Monday in U.S. District Court in Concord. Its outcome could set a precedent for states such as Nebraska, Nevada and Missouri, which have introduced similar bills. New York is expected to do so this year.

The New Hampshire law aims to protect the privacy of doctors, end inappropriate marketing of drugs to physicians and cut swelling health care costs, said Richard Head, New Hampshire’s senior assistant attorney general.

“The New Hampshire Legislature concluded that the practice causes doctors to prescribe more-expensive drugs when a less-expensive clinically equivalent drug would otherwise be prescribed,” he said.

Under an exemption in the law, organizations can use the information as long as they do not profit from it, Head said.

The law’s critics contend that IMS and other data mining companies provide crucial information to national research databases.

“What the law doesn’t take into account is that they can’t use the data if it’s not collected,” said Charles Arlinghaus, president of the Josiah Bartlett Center of Public Policy, an independent think tank.

IMS and Verispan, which is a joint venture of Quintiles Transnational Corp. and McKesson Corp., say the law violates First Amendment free-speech protections.

“When the government decides it doesn’t want information published that is in the hands of private entities, it has to show it has a compelling reason,” said attorney Thomas Julin at Hunton & Williams, which represents IMS in the case.

High Stakes
For the pharmaceuticals industry, which last year generated U.S. sales of roughly $272 billion, the stakes are high.

“Ending the collection of prescribing data will hamper pharmaceutical companies’ ability to provide current information about drugs to physicians who need it most,” said Ken Johnson, senior vice president of the Pharmaceutical Research and Manufacturers of America.

Some states, including California, have already considered and rejected such laws.

Supporters of New Hampshire’s law include the American Association of Retired Persons, the National Women’s Health Alliance, the American Federation of Labor, and the New Hampshire Medical Society, the state’s top medical body.

“We just feel that physicians should be able to decide on their own what the right medicines are,” said Palmer Jones, the New Hampshire Medical Society’s executive vice president.

Some doctors don’t want the information restricted.

“I recognize that pharmaceutical sales representatives are attempting to make a profit for their employers, but they often have excellent information, including specific testing information, that I might not otherwise learn about,” said Thomas Wharton, a cardiologist in Exeter, New Hampshire, who will testify on behalf of IMS in a deposition.

Ernst Berndt, a Massachusetts Institute of Technology economics professor, said such data can help researchers and government agencies like the U.S. Food and Drug Administration, which uses the data. But Berndt says it should be free.

The Atlanta-based U.S. Centers for Diseases Control and Prevention said New Hampshire’s law would have no effect on its research because it uses its own surveys.