Senate approves bill allowing pharmacies to sell patient medical records without their consent

The California Senate approved a bill today sponsored by a drug marketing firm by a vote of 21-16.  The  legislation allows the sharing and selling of a patient's confidential medical information regarding prescription drugs among pharmacies, third party corporations and pharmaceutical companies without the patient’s consent.

“California consumers and the right to privacy explicit in our State Constitution lost and big business won today," said Zack Kaldveer, spokesperson for the Consumer Federation of California. "Under this bill, an individual’s private medical prescriptions become commodities to be marketed and sold for the purpose of increasing corporate profit, not improving public health."

SB 1096 (Calderon) allows pharmaceutical drug manufacturers to essentially buy a patient’s private medical information in order to send them mailings - ostensibly as a reminder to take their medications or renew their prescriptions. These third party mailings would be designed to look as if they came from the pharmacy, thus raising the specter that a patient could receive contradictory instructions from two trusted sources, the doctor and the pharmacy. Yet the bill does not include any penalties for drug companies that engage through intermediaries in these communications with patients in contradiction to a doctor’s recommended course of treatment.

“Californians have the right to expect their private medical records will be held in confidence by their doctors and pharmacists,” said Kaldveer. “A person's doctor - not a third party marketing company - is the best source for informing a patient about how to manage his or her health condition. By intruding upon and confusing this relationship, this bill could put patients’ health at risk.”

Drug companies are interested in acquiring every bit of personally identifiable information about patients in order to market their products directly to them. SB 1096 does not require the third party mailer to remove or encrypt personally identifiable patient information – such as a social security number - that it shares with the pharmaceutical company. If information aggregators get access to this data they could then track down such things as your credit and bank account information – a jackpot for company marketers, insurers, hackers, and identity thieves.

“SB 1096 gives drug marketing and pharmaceutical companies exactly what they want: a way to increase customer allegiance to their particular brand name through direct mail,” said Kaldveer. “In contrast, consumers’ right to privacy is undercut, their identities are more likely to be stolen, and increasing amounts of junk will fill their mail boxes.”

A week ago the bill was narrowly defeated. In response, the bill’s author, Senator Ron Calderon - who has received $21,690 from drug companies and other bill beneficiaries – added an “opt-out” amendment to appease those with privacy concerns. Whether this was responsible for the sudden turnaround in the Senate is still unknown. However, consumer and privacy protection groups opposing the bill were not swayed.  

“Opt-out provisions are designed to put the burden on the patient rather than the company looking to profit off them. The fact is a patient’s medical records could initially still be shared without them having given their informed consent to do so,” said Kaldveer. “Under “opt-in”, a critical principle of privacy protection is upheld: before a person’s medical records are sold or shared, they must give prior consent to do so.”