By Robert Barnes
Washington Post Staff Writer
Friday, January 7, 2011; 10:26 PM
The Supreme Court will decide whether states may prohibit the use of drug prescription records for marketing purposes in one of several new cases it accepted Friday.
The court, in reviewing a Vermont law that restricts commercial use of prescription records, will settle a split in lower courts about whether such laws violate the First Amendment.
The U.S. Court of Appeals for the 2nd Circuit in New York struck down Vermont's law. The U.S. Court of Appeals for the 1st Circuit in Boston upheld similar legislation in Maine and New Hampshire. Both the states and the companies on the other side of the conflict asked the high court to decide the issue.
IMS Health and other companies collect data from pharmacies on the drug-prescribing practices and histories of doctors. The records do not include information that would identify patients.
The companies say the data they collect help law enforcement and public health officials by locating areas where certain illnesses are concentrated and to identify doctors who overprescribe certain drugs, such as narcotics.
But the companies profit by selling the information to drug manufacturers. Those companies use the information to market their products to doctors who show up in the data as prescribing competitors' drugs.
The states have restricted the use of the data for that purpose. They contend it increases health-care costs by, for instance, persuading doctors to prescribe name-brand drugs instead of generics.
Vermont restricts use of the records only to marketing new drugs, and only then if the prescriber consents. It said its law was intended to correct an "imbalance" in the "marketplace of ideas."
But the appeals court said it violated the First Amendment by restricting the transmission of factual information and limiting its use in marketing.
The case is Sorrell v. IMS.
The court accepted another case Friday that implicates the First Amendment in an entirely different way. It will review a decision by the Nevada Supreme Court striking down a state law governing when public officials must recuse themselves from voting on an issue.
The Nevada Commission on Ethics said it was a conflict for a city councilman to vote on a casino project because his close friend and campaign manager had been hired by the developer. The state's high court said the law was too broad and violated the official's First Amendment speech rights.
Several states joined Nevada in asking the Supreme Court to review the decision, saying free-speech rights did not extend to the restrictions on a public official to avoid a conflict of interest in his official actions.
The case is Nevada Commission on Ethics v. Carrigan.
The court probably completed its docket for the term with Friday's actions, accepting those two cases and five others. They will be heard in April, the last month the court normally hears arguments before it completes its work by the end of June.
In one of the cases, justices agreed to hear a challenge brought by some Halliburton Co. shareholders who want to pursue a class-action lawsuit against the oil-services company, claiming it inflated its stock prices between June 1999 and December 2001. The case will be about the class-action issue, not the allegations against the company.
The case is Erica P. John Fund v. Halliburton.