Pharmaceutical sales representatives walk into New Hampshire physicians' offices armed with facts about their companies' products and data about physicians' patient prescribing habits. Until recently, however, pitching a new drug did not also require expertise in First Amendment free-speech law.
That may change due to New Hampshire's Prescription Information Law--the nation's first prohibition on the use or sale of a physician's prescribing history for pharmaceutical marketing or other commercial purposes. In a precedent-setting decision, the 1st Circuit in November upheld the law's restrictions on data-mining companies that provide such information to drug companies.
Righting a Wrong
Judge Kermit Lipez, in his dissent, tried to accommodate both sides of the argument. "The very elimination of the detailers' ability to use 'a particular informational asset' restricts the message they are allowed to disseminate and implicates the free speech concerns of the First Amendment," he wrote. But Lipez saw the restriction as permissible since it aims to lower drug costs.