First Circuit Keeps Prescription Drug Histories Private in Maine

BOSTON–The First Circuit has rejected an effort by prescription drug analysts to challenge Maine’s law  allowing doctors to keep prescription drug histories secret. The three-judge panel in Boston upheld the constitutionality of 22 Me. Rev. Stat. tit. 22, section 1711-E(2-A), which allows Maine physicians to keep identifying information away from those marketing prescription drugs to doctors.

The district court had granted plaintiffs’ motion for an injunction prohibiting enforcement of Maine’s law ongrounds the ban violated First Amendment rights. The Circuit court reversed because: (1) the statute regulates conduct, not speech; (2) even if the statute regulates commercial speech, the regulation satisfies constitutional standards; (3) the Maine statute constitutionally protects Maine prescribers’ choice to avoid unwanted solicitations based on their identifying data; (4) the statute was not vague; (5) the statute does not violate the Dormant Commerce Clause because it regulates prescription drug information intermediaries’ out-of-state use or sale of Maine prescribers’ data; and (6) the statute does not impose disproportionate burdens on interstate commerce.

The case, decided August 4, 2010, is IMS Health Inc. v. Mills, 08-1248.