Previous Politech message: http://www.politechbot.com/p-03727.html --- Date: Mon, 08 Jul 2002 15:48:05 -0400 From: "Eric M. Freedman" <lawemfat_private> Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT To: declanat_private -I would think the problem is that they rummaged in her drug records to find her to target. Suppose they did that, and wrote "Dear former Prozac user: We see you have taken our pills and have now stopped. Perhaps that was because of side effects. Here is our latest and greatest new pill. Try this one." All of this means that she is in a marketer's database (sharable) as a person with depression. Suppose it were AIDS, or VD, or whatever? -E. --- Date: Mon, 08 Jul 2002 15:48:43 +0000 From: robin <robinat_private> To: declanat_private Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT Declan McCullagh wrote: >[It seems to me that the invasion of privacy claim is weak: I fail to see >a real difference between receiving a Prozac pill in the mail vs. a >tailored ad beginning "Dear former Prozac user..." The real claim, to the >extent there is one, seems to be dispensing drugs near-randomly. --Declan] I have Diabetes and high blood pressure, and I am *voluntarily* on Walgreens' pharmacy specials email and postal mail marketing lists. They have never violated my privacy or sold my personal information as far I as know, and I have been pleased with the health information and special deals they have sent me. I also think they have one of the best online prescription drug refill ordering systems around. As I think most long-time politech readers know, I am about as virulent a spam-hater and junk-mail loather as you can find, but I feel Walgreens is getting a bad rap here. They can send me all the free meds (or free med coupons) for *my* chronic illnesses they want, and I'll thank them every time they do. :) (And as stressful as my life has been lately, I wouldn't mind if they sent me a little free Prozac too...) - Robin "Roblimo" Miller Editor in Chief, OSDN (Linux.com, Newsforge.com, freshmeat.net, Slashdot.org, DaveCentral.com, and other popular tech Web sites) --- Date: Mon, 8 Jul 2002 13:02:55 -0700 To: declanat_private From: Jim Warren <jwarrenat_private> Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT >[It seems to me that the invasion of privacy claim is weak: I fail to see >a real difference between receiving a Prozac pill in the mail vs. a >tailored ad beginning "Dear former Prozac user..." The real claim, to the >extent there is one, seems to be dispensing drugs near-randomly. --Declan] Seems to me that the real issue is whether the drug peddler used access to the patient's medical records for sending their "first fix is free" promo. After all, that's NOT the reason that a patient submits govt-REQUIRED identification information to a drugstore in order to fill a prescription. If the government FORCES physicians to create such records, and FORCES patients to submit them to retailers that sell drugs, shouldn't such govt-mandated records at-least be protected against use by peddlers and promoters??? --jim --- Date: Mon, 08 Jul 2002 15:49:18 -0400 From: david turgeon <david.tat_private> Organization: http://www.notype.com To: declanat_private Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT declan > [It seems to me that the invasion of privacy claim is weak: I fail to see a > real difference between receiving a Prozac pill in the mail vs. a tailored > ad beginning "Dear former Prozac user..." The real claim, to the extent > there is one, seems to be dispensing drugs near-randomly. --Declan] yes, but (1) the story talks of someone who is obviously not a former prozac user; (2) the information has been culled from a database, most likely without the person's consent. the invasion of privacy claim seems quite on the mark to me... on the other hand, you're right in that a pharmaceutical company should know better & there's a serious ethical breach there... but hey, we're in a free market, what's ethics for? have a nice day ~~ david --- To: declanat_private Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT From: Michael Poole <pooleat_private> Date: 08 Jul 2002 16:02:49 -0400 In-Reply-To: <5.1.1.6.0.20020708132859.02210e98at_private> Declan McCullagh <declanat_private> writes: > [It seems to me that the invasion of privacy claim is weak: I fail to > see a real difference between receiving a Prozac pill in the mail > vs. a tailored ad beginning "Dear former Prozac user..." The real > claim, to the extent there is one, seems to be dispensing drugs > near-randomly. --Declan] There is no significant difference between the two from a privacy viewpoint. However, there is a significant privacy difference between junk mail starting "Dear former credit card holder," and junk mail starting "Dear abortion patient." Medical records are protected by much stronger laws and regulations than virtually any other (non-classified) records, due to concern over profiling and discrimination based on their contents. If a pharmaceuticals corporation can get its hands on even pieces of one's medical history, what is to stop an unscrupulous employer from doing the same? Michael Poole --- Date: Mon, 8 Jul 2002 13:26:03 -0700 To: declanat_private Subject: FC: Free Prozac in the mail draws a lawsuit, from NYT From: briandat_private >>>>> "Declan" == Declan McCullagh <declanat_private> writes: Declan> [It seems to me that the invasion of privacy claim is weak: Declan> I fail to see a real difference between receiving a Prozac Declan> pill in the mail vs. a tailored ad beginning "Dear former Declan> Prozac user..." The real claim, to the extent there is one, Declan> seems to be dispensing drugs near-randomly. --Declan] It's not clear to me why you think the claim is weak. The patients prescription records had obviously been divulged or they would not have received the sample. If the records had not been divulged then, as you point out, prescription medication is going out near-randomly and that's a big problem too. Brian P.S. New subscriber to politech - I love it ! --- Date: Mon, 08 Jul 2002 13:26:09 -0700 To: declanat_private From: Barry Caplan <bcaplanat_private> Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT At 01:29 PM 7/8/2002 -0400, Declan McCullagh wrote: >[It seems to me that the invasion of privacy claim is weak: I fail to see a real difference between receiving a Prozac pill in the mail vs. a tailored ad beginning "Dear former Prozac user..." The real claim, to the extent there is one, seems to be dispensing drugs near-randomly. --Declan] Declan, I think there are 2 claims - the first as you mention. The privacy claim arises not so much out of the fact of what was in the package that a mailman placed in the mail box, as you note, but from the trading of medical records that is necessary to create a package of either type you describe to be delivered. The privacy claim is not so much against the USPS for delivering the package as it is against other entities for violating privacy to create the package, *even if it was never mailed* People can put fake information on supermarket buying cards and never get a "Dear former Tide Detergent user" letter, but you can't opt out of a prescription plan in a similar fashion. Barry Caplan --- Date: Mon, 8 Jul 2002 16:44:04 -0400 (EDT) From: "J.D. Abolins" <jda-irat_private> To: Declan McCullagh <declanat_private> Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT In-Reply-To: <5.1.1.6.0.20020708132859.02210e98at_private> The "invasion of privacy" claim seems to be essentially hooking into the notion that the unsolicited mail that gives clues about a customer's medical condition is a breach of medical records privacy. You are right about there being no difference between mailing of the Prozac pill and the tailored "Dear former Prozac user" (or "Hey, person with clinical depression...!" ad). And you're right The dispensing of a drug that is supposed to require a prescription via unsolicited mail being an issue. Privacy regarding pharmacies are a headache. Yes, there can be problems if a pharmacy's tailored mailings disclose a customer's conditions to other people (including roommates, spouse, lover, boss, mail carrier, etc.) Prozac might not be such a big deal except in certain employment environs. Now if a company marketing antiretroviral drugs does such tailored ads, ooooh!! Imagine the lover of an AZT customer opening up a mailing to the customer that tells about new anti-HIV preparations AND the lover was not told about the condition. <g> Side note; There was a lawsuit filed in New York by an HIV-positive customer of a small "Mom & Pop" drugstore after he received a mailing from a pharmaceutical company concerning antiretroviral medications. He used the small drugstore because he could talk about his situation privately with the pharmacist. But the customer records were purchased by a drugstore chain and the info sold. The plaintiff saw it as a breach of privacy and sued. I don't know the outcome of the case. One potential weakness is probably the lack of a contractual argreement with the small drugstore about confidentiality. The plaintiff just assumed it was there like so many people do. End of side note. There can be a lot of finger pointing in this type of privacy claim. The mail should not have been opened by anybody other than the addressee. The customer should have been discrete in the choice of mailing info (if possible). The customer should live in a way where the disclosure of medical conditions won't cause a big ruckus. The pharmacy should have sent the ad in a form not to look so tailored. Etc. Here come the headaches. <g> One nice thing about non-tailored ads is that they don't indicate a person's medical or other conditions. If everybody in the neighborhood gets the ad, it is hard to jump to conclusions. Practical measures to prevent getting problematic drug mailings? - Stay healthy - Pay for drugs in cash and give "safe" addresses - Use clinics that collect minimal info - Look into "alternative" modes of treatment - Defuse problems of disclosure I know, I know, these won't help everybody. By the way, in the movie Minority Report, there are depictions of near future billboards and ad signs that adjust their message according to the biometrically scanned identity of a nearby person. I was imagining a scene from a mall of that future world where a guy passes a Victoria's Secret store and the ads announce, "Hello Mr. Quimby... we cater to the fashionable cross dresser..." And Mr. Quimby passes a drugstore which has an ad that announced loudly, "Don't let impotence, chronic flatuance, and bad breath ruin your life when there's a rainbow swirled pill that will take care of those problems..." <g> Some people however would say that the answer is not in hiding the info but in removing the social stigma and embarrassment from various conditions and practices. But that's another story. For now, the market blowback of poorly handled ad campaigns can work very well. As Victoria's Secret of 2054 wonders why Mr. Quimby no longer walks by their store anymore, let alone shop there and another women's clothing store profits by offering discrete sales at a price. <g> J.D. Abolins (with quick typing typos and all) --- From: "Andrew Wolfson" <awolfsonat_private> To: declanat_private Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT Date: Mon, 08 Jul 2002 16:45:17 -0400 FWIW, this isn't the first time Eli Lilly/Prozac has raised ire: <http://www.ftc.gov/os/2002/05/elilillycmp.htm>http://www.ftc.gov/os/2002/05/elilillycmp.htm http://www.ftc.gov/os/2002/05/elilillydo.htm --Andy --- Date: Mon, 8 Jul 2002 21:47:31 -0400 Subject: Re: FC: Free Prozac in the mail draws a lawsuit, from NYT Content-Type: text/plain; charset=US-ASCII; format=flowed From: Arthur Amolsch <aamolschat_private> To: declanat_private Content-Transfer-Encoding: 7bit In-Reply-To: <5.1.1.6.0.20020708132859.02210e98at_private> Declan - If this were not a "former Prozac user," how would Walgreens or anyone but his/her physician know to send the sample product? Looks to me like *both* an invasion of privacy and a violation of law ... unless dispensing prescription drugs without a physician's prescription is legal in Florida. --- ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ Declan McCullagh's photographs are at http://www.mccullagh.org/ ------------------------------------------------------------------------- Like Politech? Make a donation here: http://www.politechbot.com/donate/ -------------------------------------------------------------------------
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