UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

IMS HEALTH INCORPORATED, a Delaware 

corporation and VERISPAN, LLC, a Delaware 

limited liability company, 

 Plaintiffs, 

v. 

KELLY A. AYOTTE, as Attorney General of the 

State of New Hampshire, 

 Defendant. 

06-CV-280-PB 

BRIEF OF AMICUS CURIAE WOLTERS KLUWER HEALTH, INC. 

IN SUPPORT OF PLAINTIFFS’ POSITION

Stephen J. Judge 

NH Bar No. 1292 

WADLEIGH, STARR & PETERS

95 Market Street 

Manchester, NH 03101 

(603) 669-4140 

sjudge@wadleighlaw.com 

Donald B. Ayer 

Charles R.A. Morse 

JONES DAY

51 Louisiana Ave, N.W. 

Washington, D.C. 20001-2113 

(202) 879-3939 

dbayer@jonesday.com 

cramorse@jonesday.com 

Counsel for Amicus Curiae 

Wolters Kluwer Health, Inc. 
TABLE OF CONTENTS 

STATEMENT OF INTEREST OF AMICUS CURIAE 

WOLTERS KLUWER HEALTH, INC......................................................................................... 1 

INTRODUCTION ......................................................................................................................... 2 

ARGUMENT................................................................................................................................. 4 

The Prescription Restraint Law Violates The First Amendment By Restraining The 

Dissemination Of Prescription Drug Information That Serves Many Important Purposes........... 4 

A. The Prescription Restraint Law’s Breadth And Vagueness Will Lead To 

The Suppression Of A Substantial Amount of Critical Constitutionally 

Protected Speech.................................................................................................... 6 

B. This Wholesale Suppression Of Important Speech Is Not Remotely 

Justified By The Desire To Protect Physician Privacy, Which Interest Is 

The Focus Of A Voluntary Program Now Being Implemented By The 

American Medical Association.............................................................................. 9 

CONCLUSION............................................................................................................................ 14 

 ii
TABLE OF AUTHORITIES 

CASES

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 

447 U.S. 557 (1980).........................................................................................................5, 9 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)...............................................................................4 

Reno v. America Civil Liberties Union, 521 U.S. 844 (1997) .........................................................4 

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) ................................................................4 

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 

425 U.S. 748 (1976).............................................................................................................4 

STATUTES

The Prescription Restraint Law, 2006 N.H. Laws 328 (codified at N.H. Rev. Stat. 

Ann. §§ 318:47-f, 318:47-g, 318-B:12, IV).....................................................................2, 3 

OTHER AUTHORITY

American Medical Association, AMA Database Licensing, http://www.amaassn.org/ama/pub/category /print/2299.html .....................................................................10 

American Medical Association, AMA’s Position Regarding State Proposals to Restrict 

Disclosure of Physician Prescribing Data 1 (2006), http://www.amaassn.org/ama1/pub/ upload/mm/432/rxnostatepaperposoct.pdf...........................................6 

American Medical Association, A Message From the AMA About Physician Data 

Distribution and Privacy, http://www.ama-assn.org/ama1/pub/upload/ 

mm/432/dblprivacy2006.pdf..............................................................................................12 

AvaMed, Code of Ethics on Interactions with Health Care Professionals, Sept. 3, 2003,

http://www.advamed.org/publicdocs/code_of_ethics.pdf .................................................13 

Julie Forster, Blues Database Tracks How We Use Health System, St. Paul Pioneer Press, 

Aug. 5, 2006, at A1..............................................................................................................7 

Beth Herskovits, IMS and Verispan Sue New Hampshire to Buy Prescriber Data—and to 

Protect the Data Sellers’ Free-Speech Rights, Pharmaceutical Executive, Sept. 1, 

2006, http://www.pharmexec.com/pharmexec/article/articleDetail.jsp?

id=369271&pageID=3.......................................................................................................11 

 iii
KaiserNetwork.org, Blue Cross Blue Shield to Create Database of Member Claims, 

Aug. 7, 2006, http://www.kaisernetwork.org/daily_reports/ 

rep_index.cfm?DR_ID=38977 ............................................................................................8 

PhRMA, PhRMA Code on Interactions with Healthcare Professionals 1 (2004), 

http://www.phrma.org/files/PhRMA%20Code.pdf. ..........................................................12 

Warren Ross, The Battle of New Hampshire, Medical Marketing & Media, Nov. 2006, at 

60, available at http://www.mmm-online.com/content/fileadmin/files/features/ 

2006/mmm_nov06_NH.pdf...............................................................................................11 

 iv
STATEMENT OF INTEREST OF AMICUS CURIAE 

WOLTERS KLUWER HEALTH, INC. 

Wolters Kluwer is a leading multinational publishing and information services company 

active in many markets, including the sale of health care products. One division, Wolters 

Kluwer Health, Inc. (“Wolters Kluwer Health”), a wholly owned subsidiary of Wolters Kluwer 

U.S. Corporation, is a primary supplier of information to professionals and students in the fields 

of medicine, nursing, allied health, and pharmacy, as well as to entities in the pharmaceutical 

industry. It produces textbooks, reference products, journals, and other informational materials 

that professionals employ in the knowledge-intensive, rapidly changing practice of medicine. 

Wolters Kluwer Health, through its wholly owned subsidiary, Source Healthcare Analytics, Inc., 

sells a variety of information products that use “prescriber-identified prescription data,” i.e., 

records that match the details of individual prescriptions to the prescribing professional. To 

create these information products, Wolters Kluwer Health purchases prescriber-identified data 

from a pharmacy or other originating entity, then aggregates, analyzes, and packages it for client 

use. 

Wolters Kluwer Health’s clients use the data in a broad range of activities. For example, 

pharmaceutical manufacturers use it to identify doctors who may be interested in their products 

and who may have patients who would be suitable participants in clinical trials of promising new 

drugs. Retail pharmacies purchase the aggregated data, which gives a clear picture of the 

prescribing practices of doctors whose prescriptions they are filling, and use it as a guide in 

discharging their own professional obligations. Among other things, pharmacies use the data to 

detect abusive prescribing practices and to identify doctors who appear not to be giving 

appropriate consideration to more cost-effective generic drug alternatives. A number of 

governmental agencies, including the FDA, use the data in discharging their regulatory and law 

 1
enforcement responsibilities. Products like Wolters Kluwer Health’s can help governmental 

agencies direct drug safety alert letters toward doctors whose prescribing practices make them

relevant, and enforce civil and criminal laws against abusive prescribing practices. In addition, a 

variety of individuals and organizations use the data in research concerning drug usage, 

interactions, effectiveness, and costs.

The statute at issue in this case, New Hampshire’s Prescription Restraint Law (“the 

Law”), threatens to prevent Wolters Kluwer Health from purchasing, aggregating, and selling 

prescriber-identified information. In addition to harming Wolters Kluwer Health’s sales and 

profits, the Law will hinder the dissemination of truthful information the availability of which 

serves the public interest in a variety of ways. 

INTRODUCTION 

The Law. The Prescription Restraint Law, 2006 N.H. Laws 328 (codified at N.H. Rev. 

Stat. Ann. §§ 318:47-f, 318:47-g, 318-B:12, IV), came into force on June 30, 2006. The Law, 

which is the first statute of its kind in the United States, makes unlawful and subjects to civil and 

criminal penalties the sale, “license[], transfer[], [or] use[]”, for “any commercial purpose,” of 

prescriber-identified prescription drug information. Id. § 318-B:12, IV. A “[c]ommercial 

purpose includes, but is not limited to . . . any activity that could be used to influence sales or 

market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an 

individual health care professional, or evaluate the effectiveness of a professional pharmaceutical 

detailing sales force.” Id. The Law expressly applies to key players in the health care industry, 

including any “pharmacy benefits manager, insurance company, electronic transmission 

intermediary, retail, mail order, or Internet pharmacy or other similar entity.” Id. The Law also 

includes two separate but overlapping lists of exceptions, one enumerating “limited purposes” 

 2
for which prescriber-identified data may be used or disseminated,1

 and one listing activities the 

statute does not prohibit.2

The Law’s exceptions raise many questions about the statute’s reach. Because neither 

“commercial purpose” nor any of the exceptions are defined with clarity, the institutions to 

which the law appears to apply, including the New Hampshire pharmacies that supply the data, 

cannot tell whether their use or dissemination of prescriber-identified data will run afoul of the 

statute. This is not a minor concern, since under the Law, violations are punishable by a fine of 

up to $10,000 each. See id. § 358-A-4. 

The Legal Challenge. On July 28, 2006, IMS Health Incorporated and Verispan, LLC, 

filed the instant suit alleging that the Prescription Restraint Law’s ban on the use and 

dissemination of prescriber-identified data violates the First and Fourteenth Amendments and the 

Commerce Clause of the United States Constitution. IMS and Verispan seek to enjoin the Law’s 

enforcement. Wolters Kluwer Health files this brief amicus curiae urging the Court to invalidate 

the Prescription Restraint Law’s restrictions on the use of prescriber-identified data and 

advancing two principal arguments: (1) the Law may well forbid, and, in any event, will have the 

practical consequence of foreclosing, many valuable uses of truthful information that serve the 

 1

 The authorized “limited purposes” are “pharmacy reimbursement; formulary 

compliance; care management; utilization review by a health care provider, the patient’s 

insurance provider or agent of either; health care research; or as otherwise required by law.” 

N.H. Rev. Stat. Ann. § 318-B:12, IV.

2

 “Nothing in this paragraph shall prohibit the dispensing of prescription medications to a 

patient or to the patient’s authorized representative; the transmission of prescription information 

between an authorized prescriber and a licensed pharmacy; the transfer of prescription 

information between licensed pharmacies; the transfer of prescription records that may occur in 

the event a pharmacy ownership is changed or transferred; care management educational 

communications provided to a patient about the patient’s health condition, adherence to a 

prescribed course of therapy or other information about the drug being dispensed, treatment 

options, or clinical trials.” Id.

 3
public interest, and (2) narrower means are available to accomplish the Law’s goal of protecting 

physician privacy. 

ARGUMENT 

The Prescription Restraint Law Violates The First Amendment By Restraining The 

Dissemination Of Prescription Drug Information That Serves Many Important Purposes 

The Prescription Restraint Law violates fundamental First Amendment rights by 

foreclosing the free exchange of truthful information among individuals and entities in the health 

care community. The result is the same whether the statute is viewed as a content-based 

restriction on speech subject to strict scrutiny or as a regulation of commercial speech subject to 

intermediate scrutiny. By virtue of its broad and vague provisions, the statute effectively renders 

unavailable for any purpose an important category of information that is valuable to researchers, 

physicians, patients, and the entire health care community. 

Under the First Amendment, content-based restrictions on speech are “presumptively 

invalid” and subject to strict scrutiny, R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992), as are 

content-neutral restrictions that penalize the dissemination of “lawfully obtain[ed] truthful 

information about a matter of public significance,” Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 

103 (1979). These kinds of restrictions will be upheld only if they serve a compelling 

governmental interest and use the least restrictive means to do so; if a less restrictive means 

exists, the State must employ it. See, e.g., Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874 

(1997). 

Historically, commercial speech—speech that does “no more than propose a commercial 

transaction,” Va. State Bd. of Pharm. v. Va. Citizens Consumer Council, 425 U.S. 748, 762 (1976)

(citations omitted)—has received a slightly lower level of protection under the First Amendment. 

A State may restrict commercial speech only if the speech is illegal, fraudulent, or misleading; or 

 4
if the law directly advances a substantial government interest by means “not more extensive than 

is necessary.” Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 

566 (1980).

The Prescription Restraint Law is subject to strict scrutiny whether the Court regards it as 

content-based or content-neutral because it penalizes the dissemination of truthful information 

concerning matters of considerable public significance. In particular, the Law threatens to cut 

off an important source of information for researchers, governmental bodies, pharmacies, 

physicians, and other health care providers and thereby frustrate their efforts to advance the 

public interest in top-quality health care. And, in any event, the Law cannot survive intermediate 

scrutiny under the commercial speech doctrine, because it is “more extensive than is necessary” 

to advance the objective of protecting physician privacy. Earlier this year, the American Medical 

Association instituted a narrower, voluntary program that honors the requests of physicians who 

wish to keep their prescribing practices private from pharmaceutical sales personnel without 

curtailing large amounts of valuable speech, including speech concerning the prescribing 

practices of physicians who express no objection.3

 Other mechanisms that do not impinge upon 

free speech also exist to advance the interest. Since the Prescription Restraint Law strikes at the 

heart of the First Amendment’s protection of speech, this Court should invalidate the Law’s 

restrictions on the use of prescriber-identified data. 

 3

 Although legislators who supported the Prescription Restraint Law claim that it protects 

the “privacy” rights of physicians, there is no historical, legal, or practical basis to classify the 

information at issue as “private” in any meaningful sense. The information resides with thirdparty businesses such as pharmacies and other similar entities; the statute specifically allows 

transfer of the information to numerous other entities such as insurers and health care researchers;

the statute specifically allows extensive use of the information for non-commercial and some

commercial purposes; and the information itself reveals nothing about the “private” life of the 

prescriber—rather, it shows the choices of a closely regulated health care professional 

concerning pharmaceutical products without revealing anything about the professional’s patient. 

 5
A. The Prescription Restraint Law’s Breadth And Vagueness Will Lead To The 

Suppression Of A Substantial Amount of Critical Constitutionally Protected 

Speech 

The Prescription Restraint Law is a great impediment to the free flow of information that 

is—in the words of the American Medical Association—“critical to improving the quality, safety,

and efficacy of pharmaceutical prescribing through evidence-based medical research.”

4

 The 

Law’s prohibition on licensing, transferring, using, or selling prescriber-identified information 

for “any commercial purpose” will frustrate activities ranging from the benign to the highly 

beneficial. The affected entities and activities include: 

Researchers. Researchers developing new drugs use prescriber-identified data to locate 

physicians who may be able to help identify potential participants for clinical trials. These trials 

benefit both the patient-participant and the researcher. Researchers also use prescriber-identified 

information—and sometimes contact the treating doctors—when studying drug responses and 

drug interactions. While the statute excludes “health care research” from the list of proscribed 

commercial purposes, the exclusion’s breadth is unclear. Given that the statute’s core purpose 

appears to be restricting the promotion of pharmaceuticals, the research exception is too vague to

provide any meaningful comfort to researchers engaged in clinical trials on behalf of 

pharmaceutical companies. 

Retail Pharmacies. Wolters Kluwer Health sells retail pharmacies a number of products 

that include the prescribing activities of doctors in their areas, which the pharmacies use for a 

variety of purposes. For example, when retail pharmacies begin to stock a drug that has some

notable advantage over a drug a physician currently prescribes, or has been shown to interact 

 4

 Am. Med. Ass’n, AMA’s Position Regarding State Proposals to Restrict Disclosure of 

Physician Prescribing Data 1 (2006), http://www.ama-assn.org/ama1/pub/upload/mm/ 

432/rxnostatepaperposoct.pdf. 

 6
with a drug the physician commonly prescribes, the pharmacy may alert the physician and give 

him the opportunity to use a different drug. Such communications are highly beneficial to 

patients and health care providers, and offer doctors the opportunity to alter their practices to 

prescribe specific drugs that may be more appropriate under the circumstances. Pharmacies also 

frequently contact physicians to bring to their attention the availability of cheaper, generic 

alternatives to the drugs they prescribe. Such valuable communications appear to be illegal 

under the Law and therefore the Law works against, rather than advances, the goal of reducing 

prescription drug costs. In addition, pharmacists use such data to discharge their ethical 

obligation to be on the lookout for abusive drug prescribing practices by doctors whose 

prescriptions they are filling. 

Pharmaceutical Companies. Pharmaceutical companies use prescriber-identified data to 

locate physicians who would benefit from free samples of their drugs—samples that physicians 

can then distribute to their patients free of charge. These companies also perform internal 

reviews of the effectiveness of their sales forces and marketing campaigns to ensure that millions

of dollars in sample drugs and advertising are not wasted on physicians who have no use for 

them. These efforts not only ensure that information reaches the most interested listeners but 

also reduce marketing costs for pharmaceutical companies, which may lead in turn to reduced 

drug costs. 

Health Insurance Companies. In one of many efforts to cut health care costs, the Blue 

Cross Blue Shield Association has assembled the nation’s largest private database of health care 

information. The database “compiles the maladies, diagnoses, surgeries, drug prescriptions and 

other treatment details for 79 million people nationwide, minus patient names to ensure privacy.” 

Julie Forster, Blues Database Tracks How We Use Health System, St. Paul Pioneer Press, Aug. 5, 

 7
2006, at A1.5

 The company plans to use the database “to find better and cheaper medical 

treatments,” id.—a goal that necessarily will involve efforts to influence prescribing behavior. 

Initiatives like this one, which seek to advance the statutory goal of cutting costs, are directly 

threatened by New Hampshire’s Prescription Restraint Law.

Governmental Agencies. Governmental agencies, such as the Food and Drug 

Administration and the United States Department of Justice, use prescriber-identified 

information generated by health information organization like Wolters Kluwer Health for a host 

of purposes, including detecting and prosecuting abusive prescription drug practices. 

These are just a few examples of the uses of prescriber-identified prescription 

information that stand to be disrupted, if not entirely foreclosed, by the Prescription Restraint 

Law. The Law, with its apparent broad prohibition of speech and numerous undefined 

exceptions, most certainly will chill the exchange of constitutionally protected speech in at least 

two ways. First, the pharmacies that serve as the principal source of raw prescriber-identified 

data could decide to stop making it available to health information organizations like Wolters 

Kluwer Health. This is not a distant possibility—certain pharmacy organizations operating 

within New Hampshire have already indicated to Wolters Kluwer Health that they intend to 

withhold either all prescription data, or at least the identities of prescribers. Second, many other 

individuals and institutions in the health care industry are likely to err on the side of caution and 

refrain from highly beneficial activities out of fear that they will risk legal penalties by 

disseminating or using prescriber-identified data.

 5 See also KaiserNetwork.org, Blue Cross Blue Shield to Create Database of Member 

Claims, Aug. 7, 2006, http://www.kaisernetwork.org/daily_reports/rep_index.cfm?DR_ID 

=38977. 

 8
In short, the Law targets and could largely if not entirely eliminate communication about 

individual doctor prescribing practices—communication that serves important public purposes. 

As such, it should be subject to strict scrutiny, which it plainly cannot survive. 

B. This Wholesale Suppression Of Important Speech Is Not Remotely Justified 

By The Desire To Protect Physician Privacy, Which Interest Is The Focus Of 

A Voluntary Program Now Being Implemented By The American Medical 

Association

Even if the Court decides the Law regulates commercial speech, it still cannot survive 

intermediate scrutiny because it is far “more extensive than is necessary.” Cent. Hudson Gas & 

Elec. Corp., 447 U.S. at 566. In this case, there is no denying that a narrower law could protect 

the state interest said to be at stake, because the American Medical Association (“AMA”) has 

already put into place a narrower alternative that allows individual physicians to have their own 

prescription information withheld from sales personnel, without unduly limiting the 

dissemination and use of other valuable speech.6

The Prescribing Data Restriction Program, or “PDRP,” is the AMA’s response to 

complaints it has received over the years from physicians who did not want pharmaceutical sales 

representatives to have access to their prescription practices. The PDRP, which took effect on 

July 1, 2006, allows participating health care professionals to protect their prescriber-identified 

information from being disclosed to sales representatives. 

The PDRP is entirely voluntary on the part of physicians. Prescribers choosing to 

participate in the program may use the AMA website to request that their identities be withheld 

 6

 The Law’s sponsors appear to have had two purposes in mind: (1) protecting physicians 

who object to dissemination of information concerning their prescribing practices and 

(2) reducing prescription drug costs. Wolters Kluwer Health agrees with Plaintiffs that the Law 

fails to advance and even appears to frustrate the second purpose, and notes that it is at best 

counter-intuitive to suppose that any suppression of true information will have the effect of 

reducing costs in a market-based economy. The argument in this part of the brief focuses, 

however, on the Law’s overbreadth as a means of protecting physician “privacy.” 

 9
from pharmaceutical company sales representatives. If a prescriber later changes his mind, he 

need only contact the AMA via e-mail or telephone, and the AMA will cease to require his 

identity to be withheld. The PDRP is available to AMA members and non-members alike at no 

charge. 

The AMA is able to make this program work effectively because it controls an important 

source of information called the “Masterfile.” The Masterfile is a list containing detailed 

information about all physicians in the United States. The AMA licenses use of the Masterfile 

widely to “large pharmaceutical companies, hospitals, medical colleges and universities, medical 

equipment and supply companies, and commercial organizations.”7

 The AMA has altered its 

Masterfile licensing agreement to require each pharmaceutical company licensee to withhold 

from its sales representatives and sales supervisors prescriber-identified data for all physicians 

who have elected to “opt out.” 

The Masterfile gives the AMA a means of strongly encouraging compliance with the 

PDRP. Physicians who participate in the program are informed that they may file complaints 

when they encounter practices that they believe violate the PDRP. When a complaint is filed, the 

AMA investigates, and if it discovers a violation, attempts to work with the violator to resolve 

the problem. If the violator fails to comply with the recommended resolution, or if it repeatedly 

violates PDRP rules, the AMA can revoke the violator’s Masterfile license. This would be a 

serious consequence for any of the various licensees of the Masterfile.8

The PDRP is thus narrowly tailored to shield the prescriber-identified information of

concerned physicians from only a discrete segment of the health care community: 

 7

 Am. Med. Ass’n, AMA Database Licensing, http://www.ama-assn.org/ama/pub/ 

category/print/2299.html (last visited Nov. 27, 2006). 

8

 The Affidavit of Robert J. Hunkler, attached as an exhibit to the Complaint, also 

describes and endorses the benefits of the PDRP. See Hunkler Aff. ¶¶ 10–14. 

 10
pharmaceutical company sales representatives and their sales supervisors. The information 

remains available to other pharmaceutical company employees, including, for example, 

researchers looking for participants in clinical trials for new drug therapies. The PDRP also 

allows pharmaceutical companies to use prescriber-identified data to evaluate their marketing 

efforts and their employees’ performance. This allows pharmaceutical companies to work more 

efficiently (and cost-effectively) by focusing their resources, including free samples, on the 

physicians (and patients) who will benefit the most. 

The PDRP is narrowly tailored in a second sense—it covers only those prescribers who 

find the sharing of their prescribing practices offensive. Thus, sales representatives may 

continue to use prescriber-identified data to communicate with prescribers who do not choose to 

conceal their prescribing practices through the PDRP. This limited access to prescriberidentified data protects the interests of physicians who value the up-to-date information 

conveyed by pharmaceutical sales representatives,9

 as well as the interests of the patients who 

receive the benefit of such informed care. The AMA’s experience in the first several months of 

the PDRP’s operation suggests both that word has gotten out and that only a relatively small 

number of physicians wish to keep their prescribing practices from pharmaceutical sales 

representatives—as of September 2006, some 4,200 doctors have registered for the PDRP, a 

proportion equal to about one half of one percent of practicing physicians in the United States. 

See Warren Ross, The Battle of New Hampshire, Medical Marketing & Media, Nov. 2006, at 60, 

61, available at http://www.mmm-online.com/content/fileadmin/files/features/2006/ 

mmm_nov06_NH.pdf; Beth Herskovits, IMS and Verispan Sue New Hampshire to Buy 

Prescriber Data—and to Protect the Data Sellers’ Free-Speech Rights, Pharmaceutical 

 9

 The Affidavit of Thomas P. Wharton Jr., M.D., F.A.C.C., attached as an exhibit to the 

Complaint, makes this point in some detail. See Wharton Aff. ¶¶ 12–16. 

 11
Executive, Sept. 1, 2006, http://www.pharmexec.com/pharmexec/article/articleDetail.jsp?

id=369271&pageID=3.

Overall, the PDRP balances the objections voiced by physicians to dissemination of 

information concerning their prescribing decisions, on the one hand, and the health care 

community’s genuine need for accurate prescriber-identified data, on the other. The PDRP has 

the potential to realize the Prescription Restraint Law’s objectives without also restraining 

speech that no physician even asks to have restrained.10

Significantly, pharmaceutical companies already have recognized physicians’ concerns 

about their marketing practices and have taken significant steps to address those concerns. For 

example, on July 1, 2002, PhRMA, the leading association of pharmaceutical manufacturing 

companies, adopted the Code on Interactions with Healthcare Professionals, which establishes 

ethical standards for pharmaceutical company sales representatives.11 The Code covers all 

aspects of the relationship between pharmaceutical sales representatives and physicians, not just 

the use of prescriber-identified data in sales pitches. It also strongly encourages pharmaceutical 

companies to develop internal guidelines to promote compliance with the Code.12 The 

 10 The PDRP is not the AMA’s only voluntary effort to address physicians’ concerns 

about pharmaceutical sales representatives. The AMA’s “Do Not Release” policy, which has 

been in place for over twenty years, allows physicians to indicate that they do not wish their 

information to be included in the Masterfile at all. See Am. Med. Ass’n, A Message From the 

AMA About Physician Data Distribution and Privacy, http://www.ama-assn.org/ama1/ 

pub/upload/mm/432/dblprivacy2006.pdf (last visited Nov. 27, 2006). 

11 PhRMA, PhRMA Code on Interactions with Healthcare Professionals 1 (2004), 

http://www.phrma.org/files/PhRMA%20Code.pdf. 

12 Id.

 12
manufacturers of medical devices, who also field sales representatives, have followed suit and 

implemented a similar code.13

* * * * * * 

New Hampshire’s Prescription Restraint Law should be subject to the most searching 

constitutional scrutiny because it both prohibits truthful speech about matters of public concern 

and, through the use of broad and imprecise language, chills other extremely valuable speech—

speech that serves the public interest in important ways. Even if the law is judged to be a 

regulation of commercial speech subject to intermediate scrutiny, it is plain that much narrower 

alternatives exist. The AMA’s recently implemented Prescribing Data Restriction Program is 

one such alternative that will keep from pharmaceutical company sales employees the 

prescribing practices of those physicians who want their prescribing practices shielded without 

also imposing a direct restraint against the communication of vast quantities of valuable 

information. 

 13 AvaMed, Code of Ethics on Interactions with Health Care Professionals, Sept. 3, 2003,

http://www.advamed.org/publicdocs/code_of_ethics.pdf. 

 13
CONCLUSION 

For the foregoing reasons, Amicus Curiae Wolters Kluwer Health respectfully requests 

that this Court rule in Plaintiffs’ favor and invalidate the Prescription Restraint Law’s restrictions 

on the use of prescriber-identified data as unconstitutional under the First and Fourteenth 

Amendments. 

Respectfully Submitted, 

/s/ Stephen J. Judge__________ 

Stephen J. Judge 

NH Bar No. 1292 

WADLEIGH, STARR & PETERS

95 Market Street 

Manchester, NH 03101 

(603) 669-4140 

sjudge@wadleighlaw.com

Donald B. Ayer 

Charles R.A. Morse 

JONES DAY

51 Louisiana Ave, N.W.

Washington, D.C. 20001-2113 

(202) 879-3939 

dbayer@jonesday.com

cramorse@jonesday.com 

Counsel for Amicus Curiae

Wolters Kluwer Health, Inc. 

 14
CERTIFICATE OF SERVICE 

I certify that on this date the foregoing BRIEF OF AMICUS CURIAE WOLTERS 

KLUWER HEALTH, INC. IN SUPPORT OF PLAINTIFFS’ POSITION was served via the 

ECF system on: 

Thomas R. Julin 

Patricia Acosta 

Hunton & Williams LLP 

James P. Bassett 

Jeffrey C. Spear 

Orr & Reno, P.A. 

Counsel for Plaintiffs IMS Health Incorporated and Verispan, LLC 

Richard W. Head 

David A. Rienzo 

Counsel for Defendant New Hampshire Attorney General 

Dated: November 29, 2006 /s/_Stephen J. Judge___________________ 

 Stephen J. Judge (NH Bar No. 1292) 

 Counsel for Amicus Curiae

 Wolters Kluwer Health, Inc. 

15