Consumer Organizations Defend New Hampshire Prescription Data Law

September 12, 2007

Several consumer organizations filed a brief asserting that a New Hampshire law banning the sale of some prescription drug information does not restrict free speech, the National Legislative Association on Prescription Drug Prices (NLARx) announced.

A federal judge permanently enjoined New Hampshire from enforcing its ban on the transmission of physician prescribing information for commercial purposes earlier this year. The law would have banned the sale of prescription drug information that identifies patients and prescribers for commercial marketing purposes.

Paul Barbadoro, U.S. District Court Judge for the New Hampshire District, said the law “restricts constitutionally protected speech without directly serving the state’s substantial interests.”

The opinion “is deeply flawed and is bound to be overturned” by the First Circuit Court of Appeals, Sean Flynn, associate director of American University’s College of Law Program on Information Justice and Intellectual Property, said. Flynn filed the brief on behalf of NLARx and several other organizations.

Prescription data trading does not qualify as speech because it was communicated between private parties for purely commercial purposes, therefore the law does not violate free speech protection, Flynn said. “There is no First Amendment right for marketers to have access to any identifying data they want to guide their efforts,” he added.

In addition, the New Hampshire bill would bring benefits by fighting inappropriate influence in prescriptions, promoting public health and keeping healthcare costs down, Flynn said.