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Friday, March 27, 2009

Law - "Data Mining Case Heads to the Supreme Court"

Tony Mauro reports today in The Blog of Legal Times in an entry that begins:

Two major publishers of health care data filed a petition today at the Supreme Court, raising cutting-edge questions about whether increasingly widespread data mining that is used for commercial purposes is protected by the First Amendment.

The petition, titled IMS Health, Inc. and Verispan LLC v. Ayotte, is an appeal of a controversial ruling last November by the U.S. Court of Appeals for the 1st Circuit. The appeals panel ruled that the data about drug prescriptions gathered by the companies is outside the protection of the First Amendment, in part because it has "scant societal value," in the same way that obscenity is not protected speech. The ruling written by Judge Bruce Selya said the pharmaceutical data at issue in the case was to be viewed, not as speech but as a commodity like "beef jerky" that can be regulated without running afoul of the First Amendment.

The appeals court upheld a 2006 New Hampshire law that banned using information about a doctor's prescribing history for the purpose of increasing drug sales. The target of the law was the business in which publishers obtain data from pharmacies about a doctor's prescription preferences and illnesses the doctor has treated (without patients' names) and then sell the data to pharmaceutical companies.

Lyle Denniston of SCOTUSLaw Blog has an entry about IMS Health v. Ayotte this afternoon complete with links to the petition and the lower court rulings.

Reading all this, I recalled yesterday's NY Times story by Stephanie Clifford headed "Online Age Quiz Is a Window for Drug Makers." It is not directly on point, but interesting, and begins:

Americans yearn to be young. So it is little wonder that RealAge, which promises to help shave years off your age, has become one of the most popular tests on the Internet.

According to RealAge, more than 27 million people have taken the test, which asks 150 or so questions about lifestyle and family history to assign a “biological age,” how young or old your habits make you. Then, RealAge makes recommendations on how to get “younger,” like taking multivitamins, eating breakfast and flossing your teeth. Nine million of those people have signed up to become RealAge members.

But while RealAge promotes better living through nonmedical solutions, the site makes its money by selling better living through drugs.

Pharmaceutical companies pay RealAge to compile test results of RealAge members and send them marketing messages by e-mail. The drug companies can even use RealAge answers to find people who show symptoms of a disease — and begin sending them messages about it even before the people have received a diagnosis from their doctors.

Posted by Marcia Oddi on March 27, 2009 04:30 PM
Posted to General Law Related