Supreme Court Protects Generic Drugs, Drug Marketers

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The U.S. Supreme Court, in a busy day of opinion releases, protected generic drug manufacturers from lawsuits while rejecting a Vermont law that was designed to make generics more widely prescribed. In Pliva v. Mensing, the high court narrowed its pro-plaintiff decision in Wyeth v. Levine of two years ago to exempt generic drugs from lawsuits over supposedly inadequate warning labels. It's a somewhat strange ruling, given the sweeping nature of Wyeth in finding drug manufacturers liable for any deficiency on the label regardless of what the Food and Drug Administration approved. In Pliva, a 5:4 majority led by Justice Clarence Thomas held that generics don't need to comply with the same duties under state tort law because a federal law designed to speed the introduction of generics into the marketplace requires them to match the brand-name warning labels word for word. It's bad luck for the person who takes a generic instead of a brand-name drug and thus loses the right to sue, the majority wrote, but said "it is not this Court's task to decide whether the statutory scheme established by Congress is unusual or even bizarre." Dissenters said the court ignored the FDA's advice and unnecessarily found it "impossible" for the generic manufacturers to comply with state and federal law at the same time when all it would take is a little effort. In another decision released today, the court struck down, on free-speech grounds, a Vermont law that state's legislators wrote to try and discourage the marketing of brand-name drugs. The law made it illegal for pharmacies to sell prescribing information to "detailers" who combed through the data to find doctors they could pitch on the benefits of their brand-name, and more expensive, drugs. The legislators didn't attempt to hide their goal of discouraging the use of brand-name drugs and encouraging cheaper generics. During the debate,
Vermont found, for example, that the "goals of marketing programs are often in conflict with the goals of the state" and that the "marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceutical marketing campaigns to doctors.
Problem: The First Amendment demands courts apply "strict scrutiny" to laws that restrict speech based on the identity of the speaker or the content of their speech. The Vermont law prohibited pharmacies from selling prescribing information to marketers, but not to researchers or organizations that examine whether doctors are complying with formularies or cost-control rules.
The statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. …The law on its face burdens disfavored speech by disfavored speakers.
Vermont argued the law was merely a restriction on commercial communications and no different, in essence, than a law that prohibits merchants from posting "Whites Only" signs. The state also argued the law didn't restrict speech, but access to information. This made it equivalent to laws prohibiting police from distributing arrest records to insurance companies and ambulance-chasing lawyers, which the court has upheld. But the majority distinguished those cases by noting that the government possessed the information it was withholding; the Vermont law prohibits pharmacists from distributing information to another group based on the content of the message they, in turn, intended to deliver to doctors. The court also rejected Vermont's argument its law protected the privacy of patients. Prescribing data could still be sold to anybody else, the court noted. As for the state's policy argument–that consumers was better off without detailers peddling their high-priced drugs in the Green Mountain State–the justices weren't having any of it:
Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the "fear that people would make bad decisions if given truthful information" cannot justify content-based burdens on speech.
The decision strengthens the court's commitment to free-speech rights for corporations, which has angered many critics on the left. In last year's Citizens United decision, the court obliterated federal campaign-finance laws that restricted how much corporations could spend on political advertising, and with this decision the court expanded on the role of commercial speech in the marketplace of ideas. In the final paragraphs of the opinion Justice Anthony Kennedy muses upon the importance of settling disputes such as the merits of generic versus brand-name drugs through "free and uninhibited speech." He acknowledges how technology has made it possible for information to spread more widely and thus violate personal privacy but says: "Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers." The dissenters, led by Stephen Breyer, noted that prescription information is collected pursuant to government regulations and the court had never found that the release or use of such information is governed by the First Amendment. They also said decision diminishes the ability of legislators or agencies like the FDA to regulate commercial speech that is false, misleading or injures consumers:
Since ordinary regulatory programs can affect speech, particularly commercial speech,in myriad ways, to apply a "heightened" First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threatening to distort or undermine legitimate legislative objectives.
Finally, in a swipe at those who would try and rehabilitate the Lochner decision striking down wage-and-hour laws in 1905 as a violation of the constitutional right to enter into contracts, Breyer said this:
Given the sheer quantity of regulatory initiatives that touch upon commercial messages, the Court's vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitutionalization of economic theories preferred by individual jurists.
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Legal Updates Courtesy of the Clore Law Group

The Clore Law Group has helped those injured in South Carolina and across the nation. Big corporation constantly try to eliminate their liability by legislation. When a lawsuit is filled for dangerous products, like perscription drugs, it is done so because the companies acted negligently. None of us believe in frivolous lawsuits. Warning labels are intended to help curb them. We do believe that if you are injured because a company did not want to properly warn you of its products potential dangerous in order to make money you should be protected. This Charleston law firm is dedicated to earning the best results for their clients. If you, or some one you love, was injured or killed by the careless actions of another person or company, call the Clore Law Group today at 843-722-8070 for a free consultation.

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