“Commerical Free Speech” – more important than patients’ well being?

Posted by BMS on Monday, May 7, 2007 at 9:16 pm

So the New Hampshire law prohibiting the commercial use of prescription information was found to violate the First Amendment (read about it here). What? Yes, it prohibits commercial free speech. What is free commercial speech?  A topic unto iteself (interesting summary here), but it is bascially defined as “expression related solely to the economic interests of the speaker and its audience”. It is not untouchable and can be banned if the State has a “substantial interest” in regulating the speech, the regulation is in proportion to that interest, directly advances that interest and uses the most limited means to achieve that interest.

Now, the sale of prescriber data by the AMA and health information organizations such as IMS and Verispan to the pharmaceutical industry is clearly in the commercial  interest of those parties – they use it to generate profit, namely by targetet detailing of physicians by sales reps. The detailing of physicians is at best neutral and often biased toward the benefits of the drug that reps are selling (really, you say, what a surprise!).  And since academic detailing is in its infancy and poorly funded, the drugs that get pushed are often the newest ones.

Now we all know that “new” is not always “best”, and these days they are often only non-inferior. The VALIANT trial, just as an example, compared Valsartan ($56/mo) against good old Captopril ($15/mo) after heart attack and found it to be “equivalent”….. I have not seen a lot of patients on Captopril lately, I certainly have seen plenty on Valsartan. And the sale of prescription data can pinpoint  the providers that are prescribing captopril (or drug generic XYZ instead of ABC), and who would you think would get a visit from the sale rep for ABC first?

So can we then assume that targeted detailing is not necesarily (you may say never!) in the interest of patients? Then does it not become a substantial interest if the State to limit that practice? These are just some thoughts that come to mind, even if protecting the private sale of databases containing personal information is somehow what the authors of the First Amendment had in mind…..

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Category: high quality health care for all,industry-physician relationships,pharmaceutical industry-physician relationship

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