House debates drug ‘data mining’ law

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Last year, the Legislature passed a law that limited the amount of information marketers could get on the drugs that doctors prescribe.

But a lawsuit was filed over whether the action was also a limitation on free speech.

So on Tuesday, the House debated whether to repeal the law altogether or to delay it.

VPR’s Bob Kinzel reports.

(Kinzel) The law in question limits the ability of marketing firms to obtain specific information about which drugs Vermont doctors are prescribing to their patients – this practice is known as data mining.

Drug companies then use this information to target marketing campaigns to physicians who don’t use their products. The Vermont law keeps this information private unless a doctor chooses to make it available.

Similar laws have been challenged in Maine and New Hampshire and the district courts have ruled that these laws violate the commercial free speech rights of the marketing companies.

The bill being considered in the House delays the implementation of Vermont’s law until the summer of 2009 and it also makes it clear that the law applies only to Vermont doctors.

Mendon Rep. Harry Chen, who’s an emergency room doctor, noted that more than half a billion dollars was spent on prescription drugs in Vermont last year and he argued that this bill is one way to encourage more physicians to prescribe generic drugs. Chen said the law is an important case of state’s rights and that lawmakers should be prepared to defend it in court:

(Chen)"Obviously that will cost money and we understand that but we believe that there are issues that go beyond actually data mining in Vermont issues that are important to the Constitution important in terms of what states can do in terms of regulating quote – unquote "commercial free speech," much less what is commercial free speech."

(Kinzel) Barre Town Rep. Tom Koch disagreed. He said the state could incur millions of dollars in legal fees if it loses this case and he urged his colleagues to repeal the law until the appeal courts have issued a final ruling.

(Koch) "I think to stick our necks out at this point when the red flags are being waved in front of us…to say damn the torpedoes go ahead is foolish and irresponsible."

Newfane Rep. Richard Marek opposed the repeal motion because he says it’s wrong for lawmakers to be influenced by the threat of lawsuits.

(Marek)"I don’t think it is contemplated under our rules, our Constitution or under notions of good governance that we ought to effectively grant a private veto power to anyone who says I don’t like what you’re about to do and I’m going to sue you."

(Kinzel) The House rejected the repeal amendment by a two to one margin and then passed the legislation.

For VPR News I’m Bob Kinzel in Montpelier.

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