US appeal overturns IMS "free speech" case

Freedom of speech cannot be used as a defense against a US state's right to legislate against the commercial use of prescriber-identifiable data, according to the latest ruling by the US Court of Appeals for the First Circuit in Boston, Massachusetts. This overturned the verdict of the District Court which had supported health data giant IMS Health's case against New Hampshire (Marketletter May 14, 2007).

The firm said it is "currently reviewing the decision and evaluating potential options." Realistically, the choices would appear to be a US Supreme Court Appeal, to negotiate a softening of New Hampshire's regulation, or to accept that other states will follow, to the detriment of IMS' business.

The northeastern state was the first to pass a law that restricted access to prescribing data. Two of New Hampshire's neighbors, Maine and Vermont, followed suit. A federal court blocked the enforcement of Maine's legislative action in December last year, while Vermont has "temporarily repealed" its own measures until July 1, 2009, to allow legal hurdles to be cleared. IMS' challenge to Vermont's data mining restrictions was heard in a federal court in July 2008.