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Last month the US Supreme Court ruled that big pharmaceutical companies have a right to the information in the medical records of individual American citizens. The justification for this wholesale intrusion on personal privacy? "Free speech", Court ruled.

Pharmaceutical Marketing Ruled to Be "Protected Speech"


Pharmaceutical companies in the US spend billions of dollars every year marketing their products to patients through television, radio, Internet, and print ads, as well as targeted news stories touting the benefits of their new medications. Big Pharma also spends billions of dollars marketing drugs directly to doctors, sending sales representatives to medical offices, and rewarding doctors who write prescriptions for their products with "continuing education" at resort locations, meals, drinks, free samples, and in some cases, cash kickbacks.

The pharmaceutical companies understandably would like to know which doctors prescribe which drugs, so they could target their sales efforts to those doctors they are most likely to win over. And many pharmaceutical companies pay pharmacies for lists of doctors with the names of the drugs they prescribe and in what doses. Individual patient names and addresses are supposed to be stripped from the data.

In 2007, the State of Vermont passed a law that made the practice of "detailing" pharmaceutical information illegal. This law prohibited the drug companies from acquiring pharmacy records so they could target doctors who would be most likely to prescribe their new drugs. The drug companies continued to be allowed to try to sell their drugs in any other way they wanted to any doctors they wanted to approach who were willing to meet with the sales people, but without the added patient data from pharmacies.

Vermont is the only state in the United States that has a single-payer system for health care. Stopping the practice of "detailing" would help keep healthcare costs lower for everyone in the state, and even the six justices of the Supreme Court who ruled against Vermont recognized this in their written ruling.

The pharmaceutical companies sued in Vermont, and lost. Then they appealed to the US Court of Appeals in Boston, and won, so the tiny state of Vermont sued the drug companies in the Supreme Court.

The ruling came the same day the Supreme Court also ruled that pharmaceutical companies did not have to disclose any potential dangers of using generic drugs instead of brand-name drugs. This means that patients who are injured when they take name-brand drugs may sue for compensation if they are injured, but patients who take cannot.

In this second case decided that day, six of the nine justices also found that Vermont had violated the big drug companies' constitutionally protected right to free speech, the same First Amendment that protects  freedom of the press, the right to assemble peacefully, and freedom of religion. We can only imagine to whom the pharmaceutical companies pray.

In part of its ruling, the majority held that the State of Vermont did not have a "substantial governmental interest" in keeping medical costs low. The "fear of people (doctors) making bad decisions," six of the justices rules, is not sufficient to interfere with doctors' right to make them.

Justice Anthony Kennedy wrote for the majority that restricting pharmaceutical company access to this information was a "prior constraint" on "truthful speech" in a "private hands." This interpretation of the facts leads to expanding the rights of free speech in the USA from individuals to drug companies. Drug companies, the Supreme Court decided, have the same First Amendment rights as people. Kennedy with the majority of the court rejected the argument by the State of Vermont that detailing was an "intrusive and invasive marketing practice."

An individual who attempts to obtain another individual's medical records for non-medical purposes still violates criminal laws. However, it's now OK for drug companies to take hundreds of thousands of medical records without patient consent to sell new medications, and even if the state pays for drugs that people don't need as a result, the state has no "interest" in stopping the process.

Before this ruling, people could elect representatives to decide the laws that would govern the use of their private medical records. Now the US Court has ruled that it will decide the laws that govern privacy, and it has decided to favor Big Pharma.

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