States that want to prevent drug companies from using physician prescribing practice data to market brand products should not be discouraged by a June 23 U.S. Supreme Court decision that struck down Vermont's prohibition of the practice.
Rather, say authors of a paper in today's New England Journal of Medicine, "clever lawmakers may, however, be able to write their way around the Court's ruling" by passing laws that prohibit "untruthful or misleading statements in detailing conversations, since such speech receives no First Amendment protection. The District of Columbia has already enacted such a law."
Michelle Mello, an attorney from the Harvard School of Public Health's Department of Health Policy and Management, and Noah Messing, an attorney with Yale Law School, suggest that states could also adopt policies that promote the use of generic drugs with initiatives such as prior authorization requirements for branded drugs, mandatory generic substitution, tiered formularies, and educational outreach to physicians.
Also, Mello and Messing wrote, physicians "can simply close their doors to such marketers."
The issue arose nationally because of physicians' concerns that pharmaceutical manufacturers send sales reps, also called "detailers," to promote their brand-name drugs to physicians' offices, and often come armed with the physician's prescribing history. The practice is called "data mining," and the authors say it is known to enhance sales calls.
"Pharmaceutical companies buy these reports from prescription drug intermediary (PDI) companies that obtain prescription records from pharmacies" and match them to physician information they purchase from the American Medical Association.