On December 21, 1007, a federal court struck down as unconstitutional a Maine law that, as of January 1, would have restricted a carrier, pharmacy, or prescription drug information intermediary from licensing, using, selling, transferring, or exchanging for value for any marketing purposes prescription drug information that identifies a prescriber who has filed for confidentiality protections.
The court found that the law, which was challenged by a group of prescription drug information intermediaries, would prohibit “the transfer of truthful commercial information” and “violate the free speech guarantee of the First Amendment.” The court also determined that the law would not necessarily achieve Maine’s stated goals of cost savings or safety improvements and would prevent the health care community from monitoring the safety of new drugs.
The court’s decision relied heavily on a similar ruling by a New Hampshire court that overturned a comparable law in that state. The principal distinction between the two cases is that the Maine law would have permitted prescribers to opt-out of allowing the use of prescriber data for marketing purposes; whereas the New Hampshire law did not provide for an opt-out, but rather simply prohibited the transmission or use of prescriber-identifiable data for certain commercial purposes. The Maine court decided that the distinction was one without a difference because, even with the opt-out provision, the law nevertheless restricts freedom of commercial speech.
Maine is expected to appeal the ruling. In the meantime, Maine’s Attorney General filed a motion on January 15 seeking to amend the court’s order, in part, by lifting the injunction affecting the registry of prescribers who have filed for confidentiality protections. The Attorney General’s position is that the plaintiffs’ motion for preliminary injunction did not cover the registry, and, in any event, the existence of the registry does not implicate the plaintiff’s First Amendment rights.