WASHINGTON (AP) — The Supreme Court said Friday it will
decide whether state laws aimed at the marketing of prescription drugs violate
free speech rights.
The court agreed to hear Vermont’s appeal of a lower court
ruling that struck down a state law that prevents companies from selling
information to pharmaceutical companies that details doctors’ prescribing
records, though without patient names.
The drug makers use the information to tailor their sales
pitches to individual doctors, among other things.
Maine and New Hampshire have similar laws that have
been upheld by a lower court.
The case on so-called data mining was one of seven
appeals accepted by the justices in their first closed-door conference since
before the holidays. Their first public session of the year is Monday.
Among the other new cases are:
An effort by Halliburton Co. shareholders to pursue a
class-action lawsuit claiming the company inflated its stock price starting
when former Vice President Dick Cheney ran it.
Appeals by Michigan and Missouri to reinstate
criminal convictions in cases in which courts found that defense lawyers gave
bad advice or took improper actions involving plea bargains.
A challenge to a Nevada
court ruling that threw out part of the state’s ethics law dealing with when
elected officials should not vote on business that comes before them.
In the prescription information case, backers of the laws
generally believe that drug prices are too high and that one reason is the
money drug makers spend to market and advertise their products. The laws’
supporters say that by preventing the sale of the information, they help
protect medical privacy, control health care costs by promoting generic drugs
and improve public health.
Vermont Attorney General William Sorrell said two dozen
other states have at least considered similar measures in recent years, making
the court’s guidance on a burgeoning issue critical.
The Vermont
law is being challenged by three companies that sell the information they
gather — IMS Health, SDI and Source Healthcare Analytics.
They argue that Vermont
places no restriction on the very same information if it is provided to
researchers and government agencies. Only the sale of the data when it could be
used for marketing drugs is not allowed.
“You can’t try to block speech because you think people
will be persuaded by the message,” said Thomas Goldstein, the
Washington-based lawyer who represents the challengers.
The drug industry’s trade group, the Pharmaceutical Research
and Manufacturers of America, also joined the lawsuit because the Vermont law also
prohibits drug companies from using the information for sales and marketing
purposes.
The lawsuit says the information about doctors’ prescribing
patterns is important in helping spot trends, keeping tabs on the safety of new
medications and studying treatment outcomes.
The 2nd U.S. Circuit Court of Appeals in New York said the law is a restriction on
commercial free speech that violates the First Amendment.
Earlier, the Boston-based 1st U.S. Circuit Court of Appeals
upheld the laws in Maine and New
Hampshire, rejecting the argument that prevailed in the Vermont case.
Because of the split decisions, the companies joined with Vermont in asking for
Supreme Court review.
The case will be argued later this year.
The case is Sorrell v. IMS Health, 10-779.
