Fighting for Access

Opening arguments have begun in a closely watched lawsuit regarding whether states have the authority to shield doctors' prescribing data from drug companies. The law restricts the ability of drugs reps to tailor their sales pitches to individual physicians--and makes it harder to judge whether their tactics had any impact.

New Hampshire's Prescription Confidentiality Law--also dubbed the "Prescription Restraint Law" by industry--bars pharmacies, PBMs, and insurers from selling doctors' prescribing histories to medical data-mining companies like IMS Health and Verispan, the two companies that filed the suit. Info by zip code or specialty is still available.

But the law's target isn't these third parties but the drug industry itself--and the sales reps who use this data to hit up high-prescribing docs with their sales pitches. Although New Hampshire represents only about one percent of data, the danger is a domino effect across states that could undermine how IMS and Verispan--and in turn drug marketers--do business.

"Perception [of the drug industry] is a very important part," said Jody Fisher, vice president for product management at Verispan. But, he added, "You're not actually getting at the pharmaceutical industry--you're targeting a tool that they use."

IMS and Verispan--as well as the industry in general--favor a voluntary measure from the American Medical Association, which allows individual physicians to opt out of sharing their prescribing histories. Yet that program has been slow going, with only about 7,000 (or less than one percent) of the country's practicing physicians signing up since it went into effect July 1.

It's not clear what the poor showing means. Many doctors may be unaware of the program or too busy for the sign-up process. On the other hand, the low numbers may suggest that as much as physicians grumble about sales reps, they do appreciate certain aspects of the interaction, like drug samples.

A summer poll from Maritz Research found that about half of physician respondents think it is appropriate for drug companies to use their prescribing histories to prepare patient education sheets or provide drug samples. About 21 percent also saw no problem using this information for sales and marketing activities.

"At the very least, it's choice," Fisher said about the AMA's program, which is modeled on the National Do Not Call Registry for telemarketers. "It's not a draconian measure."

State Rep. Cindy Rosenwald, who drafted the bill and is married to a cardiologist, said she saw firsthand the tactics drug reps use to promote their products to doctors. "We saw two problems--one was privacy, one was money--and we thought that they were linked," she said, adding that, over the past five years, the per-capita cost of drugs has risen 84 percent, increasing Medicaid costs by 65 percent despite only a 20 percent growth in population.

In their lawsuit, IMS and Verispan argue that New Hampshire is preventing the exchange of truthful information, or "free speech," in order to accomplish something only tangentially related--controlling drug prices. The state disputes that the data is speech, and likens the restrictions to those placed on a company undergoing a "quiet period" before an IPO.

The companies also argue that the data serves important non-marketing purposes--from alerting high-prescribers about new drug warnings to academic studies on how public health efforts impact prescribing habits. If it can't be sold to pharma, however, there will be no economic incentive for it to be collected in the first place, the companies assert.

"It's a multifaceted issue," said Randy Frankel, vice president of public affairs at IMS. "Any way a judge looks at this, he will recognize that the data is necessary."

Rosenwald dismisses that idea, arguing that zip code level data remains valuable enough for the industry to pay for its collection. She noted that the state hasn?t ruled out other laws for holding down drug costs. "Many states pursued those alternatives," she said. "This just seemed to be very reasonable."