It seems natural at first to dismiss health care marketing as the invasion
of crass commercialism into some of the most sensitive areas of people's lives.
This approach is too simplistic, however, because health care marketing is one
of the ways that advancements in medicine and in health-protecting services like
insurance are made widely known.
Using health information to market goods and services certainly runs the risk of invading
privacy. The inappropriate advertisement or sales call can communicate to people that
their sensitive information has been handled indiscreetly. This can be a mortifying
offenses to a person's sense of autonomy and dignity.
A blanket prohibition on marketing that uses health care information
would be unsatisfactory, even harmful in many instances, however. There are many
types of health information that are not viewed by
most people as particularly private. There is also tremendous potential value
in allowing marketing communications to communicate the existence of new medicines,
procedures, and programs to the public. Indeed, marketing is a central part of
delivering health care to American patients.
Protections for privacy in the context of marketing should be highly tailored to
the context of the medical condition at issue, the nature of the communication, the
circumstances of the patient, and so on.
It is highly likely that prescriptive regulation can not provide appropriate
guidance for the billions of health marketing communications that occur each year.
Rather, a flexible privacy protection regime like the law
of torts — which meets every harm to privacy with an appropriate punishment — is