Updated: February 2013

Sorrell v. IMS Health

Consumer Action recently signed onto an amicus brief in a Vermont case that could have a huge impact on prescription privacy. Sorrell v. IMS Health is currently under review by the U.S. Supreme Court, after the Second Circuit Court of Appeal’s ruled against Vermont’s prescription confidentiality law. IMS Health, a company that says it offers “pharmaceutical intelligence, information and consulting services to the healthcare market,” charged that the state law violates the First Amendment rights of its industry.

Vermont prescription confidentiality law regulates companies that buy, sell or use doctors’ prescribing records. Many people do not know that pharmacies collect data about the drugs doctors prescribe to patients, and make that data publicly available (with patient identifying information redacted) for various uses.  Consumer groups counter that today’s sophisticated “re-identification” techniques used by data miners make it impossible to fully anonymize personal information and that the sale of such data is a slippery slope. Many doctors also object to such data being used to sell them specific drugs.

Pharmacies in Vermont sell information about prescriptions to data miners such as IMS Health and associates, who in turn sell the data to drug companies for use in targeting sales to individual physicians. In 2007, with the strong support of doctors, Vermont passed the Prescription Confidentiality Law to regulate the sale and use of prescription records containing the names of individual prescribing doctors who have not consented to release the information. The industry challenged the law in district court, where the court concluded that the law did not, as marketers charged, violate the First Amendment. On appeal, the Second Circuit reversed the ruling, holding that Vermont’s restriction of access to this data was an unconstitutional restriction on commercial speech because it “affect[ed] manufacturers’ ability to promote brand-name drugs to doctors.”

Consumer Action has joined Public Citizen, The Center for Science in the Public Interest, Public Good, and U.S. PIRG in an amicus brief with the Supreme Court in support of the petitioner, Vermont Attorney General William H. Sorrell. Click here to download a copy of the brief.