Vermont's appeal to the U.S. Supreme Court to uphold the state's prescription confidentiality law – which allows doctors to block use of their prescribing information, mined from pharmacy records, for marketing purposes – will see its day in court next month.

Last week, Vermont Attorney General William Sorrell filed a brief arguing that Vermont's law is constitutional. But Data mining companies, including IMS Health and PhRMA, a trade organization for the pharmaceutical industry, claim the law violates their First Amendment rights. The case, Sorrell v. IMS Health Inc., will be argued before the Supreme Court on April 26.

Federal law restricts the sale of patient-identifiable information, but many pharmacies sell records that reveal which doctors prescribe which drugs, as well as the age and gender of the patient receiving the drug. Pharmacies sell this information to data mining companies who sell it to pharmaceutical companies. Pharmaceutical companies then use the data as part of targeted marketing strategies directed at individual physicians.

The legislature enacted the prescription confidentiality law at the request of doctors who objected to the practice and called it "an intrusion into the way physicians practice medicine." The law provides that doctors' prescription information cannot be sold or used for marketing prescription drugs unless the doctor consents.
The Vermont federal district court upheld the law but a divided panel of the Second Circuit Court of Appeals reversed that ruling in November 2010. That decision is now under review by the Supreme Court. The First Circuit Court of Appeals upheld similar laws passed in New Hampshire and Maine.

Sorrell's brief was followed this week by many organizations filing "friend of the court" briefs that also supported Vermont's position. The U.S. Department of Justice argued the law is constitutional, as did the state of Illinois, joined by 34 other states and Washington, D.C. The Vermont Medical Society filed an amicus brief joined by other state medical societies, the American Academy of Family Practitioners, and the American Academy of Pediatrics. Together, these groups represent more than 100,000 physicians.

The Vermont Medical Society explained physicians' interest in "seeing that their patient relationships remain uncompromised by unduly intrusive targeted marketing practices of the pharmaceutical industry." The New England Journal of Medicine based its support for the law on a "deep respect for the privacy and confidentiality of the doctor-patient relationship." Consumer and privacy groups such as AARP, Public Citizen, the Electronic Privacy Information Center, and the Electronic Frontier Foundation warned that the commercial use of prescription records poses real risks to doctor and patient privacy and is not protected "speech."

"I am very pleased to have the federal government, a bipartisan group of 35 states and many other respected organizations on our side as we prepare to defend this important law before the nation's highest court," said Sorrell.

Vermont Governor Peter Shumlin said he "appreciates the Justice Department's support for this commonsense measure to protect medical privacy and reduce healthcare costs."