Announced Action for January 27, 2006

Commission authorization of the filing of staff comment: The Commission has authorized the staffs of the Office of Policy Planning, Bureau of Consumer Protection, and Bureau of Economics to file a comment with Assembly Member Barbara S. Matthews of the California Legislature’s Seventeenth District concerning California State Bill (SB) 401, a bill that proposed to amend the California Confidentiality of Medical Information Act (CMIA). Assembly Member Matthews asked staff to address whether the proposed amendment would detrimentally restrain the flow of health information to California consumers.

SB 401 would have modified the CMIA to require a pharmacy, subject to certain exceptions, to get a patient’s “opt-in” consent before providing the patient with “a written communication” in conjunction with a prescription if it “includes the trade name or commercial slogan for any prescription drug, prescribed treatment therapy, or over-the-counter medication other than the [drug or therapy] being dispensed, if the communication is paid for or sponsored
. . . by a manufacturer, labeler, or distributor of prescription drugs.”

According to the FTC staff’s comment, in contrast to SB 401, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule does not define a health care provider message as a marketing communication simply because it is sponsored. SB 401, therefore, would be more restrictive than HIPAA’s privacy rule. In addition, “SB 401's prophylactic restraint on a type of commercial speech that is not inherently unlawful or misleading may have raised questions under the First Amendment to the U.S. Constitution and ultimately may not have benefitted consumers.” Finally, alternative, less-restrictive measures than those proposed in SB 401 could help ensure that patients are not misled as to the source of funding for such communications without limiting consumers’ access to potentially useful health information.

The Commission vote authorizing the staff to file the comment, which can be found on the FTC’s Web site and as a link to this press release, was 5-0. (FTC File No. V050020; the staff contact is Maureen K. Ohlhausen, Office of Policy Planning, 202-326-2632.)

Copies of the documents mentioned in this release are available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Call toll-free: 1-877-FTC-HELP.