Drug Marketers File Cert Petition in Ayotte Privacy Case

The SCOTUSBlog has news that a petition for certiorari was filed today in the case of IMS Health v. Ayotte. In proceedings below, the First Circuit, in a landmark privacy ruling, turned back prescription drug marketers' claim that they had a First Amendment right to distribute data that identified doctors' drug-prescribing patterns. New Hampshire law banned the distribution of this information, based on evidence that it was distorting physician drug-prescribing practices away from generic drugs and in favor of more expensive brand-name drugs. To the detriment of the state's health care budget.

A key passage in the First Circuit's opinion went like this: "The societal benefits flowing from the prohibited transactions pale in comparison to the negative externalities produced. This unusual combination of features removes the challenged portions of the statute from the proscriptions of the First Amendment.”

Similar laws are in place in Vermont and Maine.

“This is an important decision for data privacy advocates,” Sean Flynn, a professor at the Washington College of Law at American University and counsel for the public interest amici in the case, said at the time. “The ramifications of giving companies a First Amendment right to sell data on all of our purchases, travel and activities would be staggering.”

A copy of the First Circuit's ruling in IMS Health v. Ayotte, No. 07-1945 (1st Cir. Nov. 18, 2008), is available here.