By Mark Sherman
Associated Press
WASHINGTON (AP) — The Supreme Court has agreed to 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.
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.
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