HOUSE BILL 232
49th legislature - STATE OF NEW MEXICO - first session, 2009
INTRODUCED BY
Danice Picraux
AN ACT
RELATING TO PRESCRIPTION DRUGS; ENACTING THE PRESCRIPTION PRIVACY ACT; PROVIDING PENALTIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. SHORT TITLE.--This act may be cited as the "Prescription Privacy Act".
Section 2. DEFINITIONS.--As used in the Prescription Privacy Act:
A. "individual identifying information" means information that directly or indirectly identifies a prescriber or a patient when that information is derived from or relates to a prescription for any prescribed product;
B. "marketing" means any activity by a company that makes or sells prescribed products, or by the company's agent, that is intended to influence the prescribing or purchasing of the company's products, including:
(1) advertising, publicizing, promoting or sharing information about a product;
(2) identifying individuals to receive a message promoting the use of a particular product, including an advertisement, brochure or contact by a sales representative;
(3) planning the substance of a sales representative visit or communication or the substance of an advertisement or other promotional message or document;
(4) evaluating or compensating sales representatives;
(5) identifying individuals to receive any form of gift, product sample, consultancy or any other item, service, compensation or employment of value;
(6) advertising or promoting prescribed products directly to patients; or
(7) disseminating a brochure, media advertisement or announcement, poster or free sample of a prescription drug, a biologic or a medical device;
C. "prescribed product" means a biological product as defined in Section 351 of the federal Public Health Service Act or a device or a drug as defined in Section 201 of the Federal Food, Drug, and Cosmetic Act;
D. "prescriber" means an individual having the authority to prescribe pharmaceuticals in New Mexico; and
E. "regulated record" means information or documentation from a prescription written by a prescriber doing business in New Mexico or from a prescription dispensed in New Mexico.
Section 3. PRESCRIPTION PRIVACY.--
A. A person shall not knowingly disclose or use regulated records that include prescription information containing individual identifying information for marketing a prescribed product.
B. Regulated records containing individual identifying information may be disclosed, sold, transferred, exchanged or used for nonmarketing purposes consistent with federal and state law.
C. The Prescription Privacy Act does not prohibit conduct involving the collection, use, transfer or sale of regulated records for marketing purposes if:
(1) the data are aggregated;
(2) the data do not contain individual identifying information; and
(3) there is no reasonable basis to believe that the data can be used to obtain individual identifying information.
D. An authorized recipient of regulated records containing individual identifying information may resell, reuse or re-disclose the information only for a use permitted pursuant to Subsection B of this section. An authorized recipient that resells or re-discloses individual identifying information covered by the Prescription Privacy Act shall keep records identifying each person that receives the information and the permitted purpose for which the information will be used for a period of five years and shall make these records available to any person upon request.
E. The Prescription Privacy Act shall not prevent a person from disclosing individual identifying information to the identified individual as long as the information does not include protected information pertaining to another individual.
Section 4. RULEMAKING.--The board of pharmacy shall promulgate rules as necessary to implement the Prescription Privacy Act.
Section 5. PENALTY--ENFORCEMENT.--The board of pharmacy shall assess a person that knowingly fails to comply with the requirements of the Prescription Privacy Act, or rules adopted pursuant to that act, by using or disclosing regulated records in a manner not authorized by that act or its rules a fine of not more than fifty thousand dollars ($50,000) per violation, as assessed by the board of pharmacy. Each disclosure of a regulated record shall constitute a violation. Fines that the board of pharmacy collects pursuant to this section shall be deposited in the current school fund. The attorney general shall take necessary action to enforce payment of fines assessed pursuant to this section.
Section 6. CONSUMER FRAUD.--In addition to any other remedy provided by law, a violation of the Prescription Privacy Act shall be an unfair or deceptive trade practice in violation of the Unfair Practices Act.
Section 7. SEVERABILITY.--If any provision of the Prescription Privacy Act or its application to a person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances shall not be affected.
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