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IMS Health, Inc., 550 F.3d at 64. The court of appeals reviewed only the New Hampshire district court decision, but because the First Circuit encompasses Maine as well as New Hampshire, its holding that data mining constitutes commercial conduct should clear the Maine data mining provision for implementation. As this article is being written, the First Circuit has been breifed on Maine's appeal of the district court, but oral arguments has not been schedualed. Personal communication with Nancy Macirowski, Assistant Attorney General, State of Maine, January 22, 2010. Although legitimate disagreement may exist regarding the constitutionality of the New Hampshire statute, it is difficult to make sense of the district court's decision in Maine. That statute does not prohibit drug companies from selling the information that they create from data mining. Rather it simply permits physicians to maintain the confidentiality of their own prescription practices, and the Supreme Court has permitted the public to opt out when it does not want to be involved in the speech of others. See, e.g., Rowan v. Post Office Department, 397 U.S. 728 (1970) (permitting individuals to direct the postal service not to deliver pornographic mail from a particular person or organization).Google Scholar

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Compare Florida Bar v. Went for It, 515 U.S. 618, 628 (1995) (upholding a restriction on attorney solicitation of clients and observing that restrictions on commercial speech could be justified “by reference to studies and anecdotes pertaining to different locales altogether”) with Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 563 (2001) (striking down restrictions on tobacco advertising in part because the effect of the regulations would “vary based on whether a locale is rural, suburban, or urban”). See also Post, R., “Prescribing Records and the First Amendment—New Hampshire's Data-Mining Statute,” New England Journal of Medicine 360, no. 8 (2009): 745–747, 746.Google Scholar

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One of the First Circuit judges in fact dissented from the court's opinion because he viewed the regulation of data mining as effectively a regulation of drug detailing. Accordingly, he concluded that the provision involved the regulation of commercial speech. IMS Health, Inc., 550 F.3d at 79–84 (Lipez, J., concurring in part and dissenting in part). Nevertheless, he concurred in the decision on the ground that the New Hampshire law also constituted permissible regulation of commercial speech. Id. at 84–100.Google ScholarGoogle Scholar

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Id., at 365 (citing 21 U.S. C. § 353a(c)).Google Scholar

Of course, sales representatives can find out some of the information from other sources that they ordinarily obtain from data mining. If they want to know whether a physician prescribes a competing drug, they can ask the physician.Google Scholar

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