Marketing Pharmaceuticals: A Constitutional Right to Sell Prescriber-Identified Data?

Pharmaceutical companies have strong economic interests in influencing physician-prescribing behaviors. They advertise direct-to-the-consumer and to the physician. Beyond general marketing, manufacturers promote their drugs to physicians through “detailing”—sales representatives (“detailers”) visiting medical offices to persuade physicians to prescribe their products. By law, pharmacies receive specific information with every prescription, including the physician’s name, the drug, and the dose. Pharmacies sell these records to Prescription Drug Intermediaries (data miners), who use advanced computing to analyze prescriber-identified information (which physicians prescribe what drugs, in what dose, and with what prescribing patterns). Data miners, in turn, lease sophisticated reports to pharmaceutical companies to refine detailers’ marketing tactics, armed with knowledge about physician prescribing practices—for example, who are high-or-low prescribers, and early-or-late adopters of new drugs. Detailing raises vital health policy questions, including its effects on clinical decision-making (safety, quality, and cost) and the physician/patient relationship (privacy and professionalism). Yet, private companies claim a First Amendment right to buy and use prescribing data for product marketing. The tensions between privacy and commercial speech have deep implications for public health regulation