MICHELE NORRIS, Host:
From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.
MELISSA BLOCK, Host:
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: On the steps of the Supreme Court today, PhRMA general counsel Diane Bieri said it discriminates against the speech of drug makers, while allowing insurers and the state to push lower-cost generics.
NORRIS: The statute is designed to make it more difficult for the pharmaceutical companies to identify doctors who will be most interested in learning about the medicines that they market.
TOTENBERG: But Vermont assistant attorney general Bridget Asay replied that nothing in the law prevents drug reps from talking to doctors.
NORRIS: All of the control is left with the doctor. The doctor gets to decide whether or not his private information about his or her prescribing practices is used for marketing. And that should be permissible under the First Amendment.
TOTENBERG: But she took quite a pummeling from the court's conservative justices.
J: Nor did Scully have by the argument that the law is aimed at protecting doctor privacy. All the doctor has to do is refuse to talk to the drug rep, he said.
J: Assuming there is some right not to be harassed, wouldn't it be better if the doctor were required to opt-out of having his information sold? Wouldn't that be less restrictive?
BLOCK: Making the argument for the data mining and drug industry, lawyer Tom Goldstein told the Court that the Vermont law unconstitutionally singles out pharmaceutical marketing.
J: It can, replied lawyer Goldstein. But, he said, this statute was not intended to protect privacy and it denies doctors important and truthful information about drugs. What Vermont did here, he said, is have a rule where one side has a much harder time getting its message out.
NORRIS: If you were truly concerned about physician privacy, how would you write this statute?
BLOCK: Then you would bar the pharmacy from giving the information to anybody.
J: Chief Justice Roberts noted that pharmacy records wouldn't exist without government regulation and the government frequently controls the use of information it requires. So how is Vermont's law any different from barring a tax accountant from selling the information he's acquired to prepare a tax return?
BLOCK: Nina Totenberg, NPR News, Washington.
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