Marketing madness

Anne Zimmerman
2020
I. Introduction In Sorrell v. IMS Health, the Supreme Court struck down a Vermont regulation requiring pharmacies to obtain prescriber consent to release prescriber-identifying information[1] to data miners for marketing research purposes.[i] Since Sorrell, legislators in the US have shied away from traditional commercial regulations limiting corporate speech, many of which would support bioethical principles.[ii] The right to free speech has become more expansive covering pharmaceutical free
more » ... armaceutical free speech in ways uncharacteristic of the long-accepted fundamental right.[iii] As a result, pharmaceutical companies increasingly influence patients and skew the judgment of doctors in prescribing decisions, now through the use of data without the authorization of the doctor or patient. The expansive view of commercial free speech has grown beyond the voicing of personal or political opinions, the suppression of which challenges liberal society. Patients' autonomy should extend to control over personal data. An ethical system would protect private data, preserve doctor-patient confidentiality, and promote justice by leveling the playing field so that generic drugs and changes to lifestyle and diet are not drowned out by the already advantaged pharmaceutical industry's aggressive marketing. II. Background A Vermont statute imposed a consent requirement so that pharmacies selling prescriber-identifying information including the practitioner and the drug prescribed to data miners who then sell mined data to pharmaceutical companies would need explicit consent from the prescriber.[iv] The purpose of purchasing the data is detailing, a form of personalized sales and marketing directed at the practitioners most likely to prescribe certain drugs. The Sorrel decision is based on the notion of corporate free speech, a concept that encompasses two conditions: first, that corporations are speakers entitled to First Amendment protection; and, second, that advertising and marketing constitute "speech." Corporations argue free speech should [...]
doi:10.7916/vib.v6i.5901 fatcat:pytny7udgreg7lviz2q53v7uju