Last year, New Hampshire became the first state to pass legislation curtailing the practice of mining pharmaceutical records. Data-mining companies buy data from pharmacies and benefits managers to track which drugs physicians are prescribing. The companies then sell that information to pharmaceutical companies, which use it to fine-tune their marketing efforts.

In 2006, New Hampshire's legislature passed the Prescription Information Law, which sought to prevent the commercial sale of prescription data containing patient- and prescriber-identifiable data. However, the law's intended zone of privacy was short-lived.

Two data-mining companies, IMS Health and Verispan, brought suit in U.S. District Court challenging the constitutionality of the law. In a 54-page opinion by Judge Paul Barbadoro, the court ruled that the law violated the Constitution by restricting commercial speech. The court determined that the transmission of data concerning the prescribing practices of New Hampshire's health providers was a form of speech entitled to First Amendment protections.

Because the New Hampshire law restricted data-mining companies' ability to communicate with pharmaceutical companies and the pharmaceutical companies' right to receive information, the court found that the law was an impermissible restriction on speech.

The court rejected the state's arguments in all three areas. First, it found the state did not have a substantial interest in protecting prescriber privacy or helping health care providers shield data about their prescription practices from data miners or their pharmaceutical company clients. The court also rejected the state's argument that transmitting the data undermined public health or increased health care costs. Finally, the court said the state's interests in reducing health care costs could be served by legislation that was less restrictive of commercial speech.

The state has promised to appeal to the First Circuit Court of Appeals. That outcome is likely to be reviewed by the U.S. Supreme Court. So while the wheels of justice are slowly turning, what can health care providers do to protect their prescriber data from being bought and sold?

The American Medical Association has developed an online program called the Physician Data Restriction Program (PDRP) that gives participating providers the power to limit access to their prescribing information while keeping such data available for evidence-based research.

Under the program, pharmaceutical companies can still acquire prescriber-identifiable data about doctors who elect to participate, but they are prohibited from sharing the information with their sales representatives, who are specifically precluded from obtaining restricted data about PDRP prescribers.

Such data includes measures of prescription volume, the associated dollar value and indicators of changes in those measures. Any data that would permit sales reps to rank, benchmark or group physicians or that would reveal prescribing habits for a particular product would also be off-limits to pharmaceutical sales reps.

As of last year, only 7,476 of the 800,000 members identified in AMA's Physician Masterfile had signed up for PDRP. Some physicians have voiced skepticism about the program's efficacy and complained about the need to renew their registration every three years.

Although it might not be perfect, in the wake of the recent court ruling, PDRP is the best - and for now the only - protection available for New Hampshire physicians who do not want sales reps to have access to their prescriber data.

Lax is an attorney in the Medical Services Group at the law firm Nelson Kinder Mosseau and Saturley. He can be reached at jlax@nkms.com.