Law reins in prescription drug spending

Law reins in prescription drug spending

	Published : Mon, 05 Feb 2007 22:59 By : Agencies Print this Story

CONCORD, N.H. (AFX) - A first-in-the-nation state law that makes individual doctors' prescription-writing habits confidential helps hold down health care spending, a lawyer defending the law's constitutionality told a judge Monday.

Studies show that marketing based on the data leads doctors to prescribe more expensive, brand-name drugs instead of cheaper generic drugs that are just as effective, Assistant Attorney General Laura Lombardi said in closing arguments after a week-long trial.

'Nobody's pitching generic drugs, so they are not hearing that information,' Lombardi said.

Two data-mining companies, IMS Health Inc. and Verispan LLC, sued to have the law declared unconstitutional. They collect prescribing information -- which does not identify patients -- from insurance companies and pharmacies, correlate it with information such as physician specialties, and sell it to pharmaceutical companies.

A key issue for U.S. District Judge Paul Barbadoro is whether the law restricts only commercial speech, which can be regulated to protect an important state interest, or speech that has a broader public benefit.

The companies argued the law restricts more than commercial speech because, for example, it prevents salespeople from educating doctors about new drugs that are significantly better than ones they are prescribing.

They also said other states have found better ways to keep drug companies from improperly influencing doctors, such as limiting gifts to doctors and setting up lists, called formularies, of preferred drugs based on effectiveness and price.

'There are all these alternatives that don't involve supression of speech,' said Tom Julin, a lawyer for the companies. 'When you are trying to keep truthful information away from people ... that doesn't advance a substantial state interest.'

Barbadoro said he expected to rule within 90 days.

He said earlier he views the law as aimed primarily at commercial speech because it permits use of prescription data for research, drug recalls and other beneficial purposes.

However, he said it could have unintended consequences because pharmacies and insurers might be reluctant to provide prescription data if they fear being prosecuted or sued if pharmaceutical companies misuse it. That, in turn, could indirectly hurt research, he said.

Lombardi said the law achieves three important goals: it keeps prescription spending lower, protects the privacy of doctors and patients, and protects the public's health and safety.

Sales representatives push brand-name drugs that, in addition to being more expensive, are so new their safety is not well-established, she said. Salespeople tend to target 'early adopters' -- doctors whose prescribing habits indicate they are quick to try new drugs, she said.

Lawyers for the state cited Vioxx, marketed by Merck & Co. as a breakthrough painkiller for arthritis sufferers, as an example of a drug that had to be pulled from the market after long-term use was linked to an increased risk of heart attack and stroke.

Lombardi acknowledged the law might prevent salespeople from targeting doctors who are under-prescribing better drugs, but said that was outweighed by the need to keep spending down and prevent salespeople from influencing doctors' decisions in ways that do not benefit patients.

Sponsors of the law 'were concerned about a third party in the room when a private decision was being made,' she said. 'Essentially, it's an intrusion on a prescription decision, and that's a public health interest.'

Julin said prescriber information has historically been public and that some 'early adopters' are leaders who set good examples for other physicians. He also said the state did not present any evidence from its own Medicaid records that doctors are prescribing expensive or unnecessary drugs.