Arkansas’ attorney general filed a brief Tuesday backed by his counterparts in 35 other states asking the Arkansas Supreme Court to uphold a $1.2 billion fine levied against Johnson & Johnson and a subsidiary over the marketing of the antipsychotics drug Risperdal.
Attorney General Dustin McDaniel called on the justices to reject the companies’ appeal of a Pulaski County jury’s ruling last year in which it found that the drug makers downplayed and hid risks associated with taking Risperdal. The companies have asked the Arkansas Supreme Court to overturn that ruling.
In his brief, McDaniel said the companies were going too far with their argument that the ruling against them violated the U.S. Constitution’s First Amendment and the free speech provision of Arkansas’ state constitution.
“Appellants’ argument that they had a constitutional free-speech right to make false and misleading statements about the safety of their drugs has no merit,” he wrote in the brief. “If accepted, it would effectively immunize false advertising and false labeling of drug products from regulation.”
McDaniel also disputed the companies’ argument that the fine levied was excessive.
If it’s upheld, Arkansas law requires the fine to go toward the state’s Medicaid Trust Fund.
Pulaski County Circuit Judge Tim Fox last year ordered Janssen Pharmaceuticals Inc. and Johnson & Johnson, which are both based in New Jersey, to pay $5,000 for each of 240,000 Risperdal prescriptions the state Medicaid program paid for during a 3½-year period, accounting for the bulk of the penalty. He also fined the companies $2,500 for more than 4,500 letters Jannsen sent to Arkansas doctors that the state said downplayed Risperdal’s side effects, which came to about $11 million.
A group of 65 Arkansas legislators and 35 attorneys general also defended the court’s ruling in a pair of friend of the court briefs filed Tuesday, arguing that the fine was consistent with state law.
“To the extent that appellants believe those statutory penalties are too harsh, their appropriate remedy lies in the political process, not the courts,” the lawmakers said in the brief.
The AARP, the group Public Citizen and former Food and Drug Administration Commissioner Donald Kennedy also filed briefs with the court defending the ruling.
Janssen said that it believed its appeal had strong merits.
“Janssen presented abundant evidence showing the company acted responsibly and fully complied with all laws and regulations regarding its antipsychotic prescription medication Risperdal,” the company said in a statement.
Groups that have filed briefs on behalf of the drug makers challenging the ruling include the Arkansas State Chamber of Commerce and the Washington Legal Foundation.
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