Prescription Data Mining and the Protection of Patients' Interests

12 Pages Posted: 7 Apr 2010  

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: June 17, 2009


This article considers efforts to address a long-standing, but increasingly refined practice that pharmaceutical companies use to enhance their drug-detailing efforts. Health care information organizations employ computer technology to collect and analyze data from prescriptions as they are filled at pharmacies. The organizations sell their analyses, which can include general prescribing trends as well as physician-specific data, to pharmaceutical companies so the companies’ sales representatives can better target their marketing activities. This “data mining” has provoked concern because it can not only exacerbate the harmful effects of drug detailing but also compromise other interests of patients.

In response, a few state legislatures have passed laws to prohibit or limit the use of data mining for marketing purposes. In turn, the laws have been challenged by the information organizations as violating their first amendment right to freedom of speech.

This article considers the policy arguments regarding legislative regulation of data mining. It also evaluates the constitutional implications of the regulations and concludes that the state provisions are desirable and should withstand constitutional challenge.

Keywords: Pharmaceutical Marketing, First Amendment, Prescription Data Mining

JEL Classification: I18, M31

Suggested Citation

Orentlicher, David, Prescription Data Mining and the Protection of Patients' Interests (June 17, 2009). Journal of Law, Medicine and Ethics, Vol. 38, No. 1, 2010. Available at SSRN:

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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