Pharmalot has a new article up on Is Data Mining Protected Commercial Speech? To which, I have to ask the question, aren’t we done with this issue yet ? Several states have passed laws and IMS Health and others have sued back. Several federal judges have struck this down and even the most ardent opponents of data mining have thrown in the towel. Why ?
Ed Silverman’s article cites only one source : American University academic Sean Flynn. Now, Flynn knows a lot about the law. He just doesn’t know much about the law in the United States (Flynn is from Africa). His failed understanding of the U.S. Constitution is the reason why New Hampshire and Maine’s bids to ban the practice were unsuccessful. Sean Flynn and his boss Sharon Treat may have hit on a loathsome practice, but Flynn's ignorance of the American legal system has led this to be an entirely academic exercise. It’s no longer about actually defeating the practice of pharmaceutical information, it’s a self esteem exercise for Flynn.
In the Silverman piece, Sean Flynn is quoted as saying : “the commercial speech doctrine serves consumer interests in being fully informed of products and services on the market by providing limited protection to advertisements and other speech to consumers proposing a commercial transaction.” This is precisely why these laws haven’t gone anywhere.
One of the quiet purposes of this data is to monitor physician prescribing behavior to ensure patients are not at risk. In the New Hampshire lawsuit, the goal was as much to create special legislation for a small group of wealthy physicians to shield them from DEA accountability as it was to stop sales reps. One of the architects of New Hampshire legislation had a spouse who is a practicing physician in the State and she didn’t want the government checking up on his writing of prescriptions (including Schedule II narcotics). Pharma sales reps became a convenient excuse. In other states, including Maine, Vermont, New York and West Virginia, the chief supporters of this kind of legislation are doctors with questionable ethical standards. This is like having Rush Limbaugh or Anna Nicole Smith’s physician argue for physician secrecy because they don’t want people to know what they are up to.
Until recently, pharma sales practices were an arms race for the ignorant. More reps meant more hassles for doctors, and the docs contended less time with patients (although, as industry insiders, I think we can all acknowledge that few physicians were actually seeing any of the reps). That’s changed. The number of sales reps is shrinking at more than 10% a year now. And if the doctor’s arguments are true, should mean more time for patients. That hasn’t happened either (but that is a whole separate issue).
In a comment posted on Pharmalot, Dr. Daniel Carlat argues that the government has a compelling interest in restricting the flow of information so as to protect public health. Unfortunately, this buy’s into the Sean Flynn upside-down view of the U.S. legal system. The government does have a strong a compelling interest in protecting public health. Which is why it won’t allow any of these ignorant laws to pass. Passing legislation that creates a cloak of secrecy so a physician’s actions can be shielded from scrutiny is NOT in the interest of public health. Physicians should be subjected to more scrutiny in the interest of public health, not less.
I actually think doctors are shooting themselves in the foot with these secrecy laws. If one of the laws gets passed and is actually held up by the Courts, I think we’ll see the day of the government getting into the business of actively monitoring physicians (compared to the present system of passive monitoring via the health information companies like IMS Health and Verispan). Docs should think about that.
As a patient, I look back 30 or 40 years and think about how it used to be in America. It was the wild, wild west and we had doctors handing out amphetamines like candy. And those were profitable times for a lot of physicians who were running side businesses in “pharmaceutical distribution.”
Sean Flynn and the doctors he represents should just be honest about what their interests really are – unsupervised access to Schedule II narcotics for profit. “Privacy” is just the cover story.
