Is “Data Mining” of Prescription and Patient Records Protected By the First Amendment?

Naomi Freundlich writes:

A year ago, I wrote about how pharmaceutical companies are increasingly paying third parties like IMS Health or CVS-Caremark to provide them with the prescribing records and identification information for individual doctors. Armed with this information, drug companies—sometimes taking on the role of “concerned experts”—can tailor their marketing directly to these doctors; visiting their offices and sending them letters and informational material suggesting that they use a different (usually newer and more expensive) medication for certain patients or suggest that they adjust dosages.

This practice, called data-mining, is a highly lucrative business (In 2005, data mining provided IMS alone with revenues of $1.75 billion) that is rapidly replacing direct-to-consumer advertising as the preferred form of pharmaceutical marketing.

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In one particularly egregious example, the website Everyday Health is “engaged in research” whose goal is to promote the use of brand-name pharmaceuticals to treat teen and adolescent depression. On-line health marketers use surveys filled out by parents and other caregivers to gather data on “fears and concerns” and “specific medications used” by their depressed teens or adolescents. They then use digital marketing strategies including “sequential messaging” to try and sell these often-desperate parents on brand-name drugs. This kind of approach represents deceptive marketing at its worst: Using deceitful techniques to take advantage of vulnerable consumers.

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