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At the U.S. Supreme Court today, justices for the first time are hearing a case that tests the limits of data mining. The issue is whether a state may bar the buying, selling and profiling of a doctor's prescription drug records for use by pharmaceutical companies. Vermont has banned this practice, but data mining companies and drug companies are challenging the law.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG: Under federal and state law, pharmacies are required to keep records of every doctor's prescription, and while patient privacy is protected by federal law, doctor privacy is not.
Pharmacies can and do sell the information to data miners, who in turn aggregate it to show each doctor's name, the number of prescriptions written for each drug, prescriptions for similar drugs, and changes from one drug to another. The data miners then resell that information to drug manufacturers so that their sales reps can target doctors for sales pitches and try to get them to prescribe, for example, a brand name instead of a generic.
Until relatively recently, doctors didn't know this was happening.
Dr. PAULA DUNCAN (President, Vermont Medical Society): People were quite surprised, because they had just no idea. Because, you know, from the physician's standpoint, we always think everything is so sacred in terms of privacy.
TOTENBERG: Paula Duncan, the president of the Vermont Medical Society, says that when her organization learned about prescription data mining, it went to the state legislature for help.
Dr. DUNCAN: The major thrust here was trying to make sure that the privacy of the physician-patient relationship was really kept intact and free from other influences.
TOTENBERG: The state enacted a law that bars selling and buying such prescription information without a doctor's consent. Under the law, doctors, in renewing their licenses every two years, must fill out a form indicating whether they agree to have their prescription information sold.
The data miners, backed by the pharmaceutical industry, contend the law unconstitutionally bars the dissemination of truthful information. Tom Goldstein represents the industry.
Mr. TOM GOLDSTEIN (Attorney): Vermont can't try and keep information out of the hands of doctors and nurse practitioners that's truthful and incredibly important about the health and safety of prescription drugs.
Ms. BRIDGET ASAY (Assistant Attorney General, Vermont): This bill doesn't do anything to stop pharmaceutical manufacturers from sending their salespeople to doctors, to telling them why their products they think are better or are more effective, are worth the money.
TOTENBERG: Vermont Assistant Attorney General Bridget Asay.
Ms. ASAY: What's at issue here is whether doctors have a right to control the use of their prescribing information against an unwanted marketing practice.
TOTENBERG: The industry's Goldstein counters that there is more at stake here, because he contends the state allows insurers and its own Medicaid managers to have access to prescribing information, while barring the same information from data miners and pharmaceutical manufacturers. The Constitution, he maintains, does not allow the state to play favorites that way.
Mr. GOLDSTEIN: Vermont can and does encourage doctors to use generics, brand names that are less expensive, maybe that they think are more effective. But what it can't do is, at the same time, tie the hands of the people who want to convey the opposite message and say: You know what? Ambien's actually better. Here's the reason.
TOTENBERG: But the state's lawyer, Bridget Asay, contends that insurers and state Medicaid managers don't buy their information from pharmacies and data vendors.
Ms. ASAY: They get that information right from doctors and patients as part of managing benefits.
TOTENBERG: The pharmaceutical industry, with an army of thousands of salespeople, spends at least $8 billion each year marketing drugs in person to doctors - this despite the fact that many experts like Stanford Medical School Dean Philip Pizzo say doctors don't need these sales calls anymore to learn about available medicines.
Dean PHILIP PIZZO (Stanford University School of Medicine): In the world of information technology today, there is no reason why the source of information about new drugs or side effects or drugs in general need to come from marketing reps.
TOTENBERG: Today's case, however, has much larger implications for the data mining industry and for consumes. Tom Goldstein poses the issue from the industry perspective.
Mr. GOLDSTEIN: If Vermont is right that the collection and manipulation of data isn't free speech, then the government can regulate it however it wants.
TOTENBERG: Bridget Asay has a somewhat different spin. If the Supreme Court says a pharmacy has a First Amendment right to sell the information it collects from its patients and doctors...
Ms. ASAY: That ruling would extend, I think, to other businesses that also collect personal information from consumers, like banks and other financial institutions, tracking on the Internet and credit card-purchasing information.
TOTENBERG: Indeed, there are a lot of places that collect personal information, and today's Supreme Court case is the first test of what limits can be put on that.
Nina Totenberg, NPR News, Washington.
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