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High court rules for drug industry on generics, patient-record buying

The Supreme Court gave the pharmaceutical industry a pair of victories Thursday, shielding the makers of generic drugs from most lawsuits by injured patients and declaring that drug makers had a free-speech right to buy patient prescription records to boost their sales pitches to doctors.

In both decisions, the court's conservative bloc formed the majority, and most of its liberals dissented.

About 75 percent of the prescriptions written in this country are for lower-cost generic versions of brand-name drugs. Federal law requires the original makers of these brand-name drugs to post an approved warning label and to update these warnings when reports of new problems arise.

But in a 5-4 decision, the high court said this legal duty to warn patients of newly revealed dangers does not extend to the makers of copycat generic drugs.

Justice Clarence Thomas reasoned that the warning labels are the responsibility of the brand-name maker and the U.S. Food and Drug Administration. He said that because generics are just copycats, their makers cannot be sued for inadequate warnings.

A consumer-rights lawyer said the ruling strips many Americans of an important legal right. "Three out of four patients just lost the right to sue" if they use a generic drug and suffer complications for which they were not warned, said Louis Bograd, counsel for the Center for Constitutional Litigation.

In the second decision, the court, by a 6-3 vote, struck down a Vermont law that barred pharmacies, drugmakers and others from buying or selling prescription records of patients for "marketing" purposes. Vermont's physicians had sought passage of the law, arguing their prescriptions were intended for private use of patients and should not become a marketing tool.

Drugmakers buy this data to gear their sales pitches to physicians. Several data-mining firms have made a billion-dollar business out of buying and selling the prescription data to drugmakers and researchers.

Writing for the majority, Justice Anthony M. Kennedy said "information is speech" and that, under the First Amendment, the government usually cannot restrict speech simply because it does not approve of the message.

"If pharmaceutical marketing affects treatment decisions," he said, "it does so because doctors find it persuasive."

In another 5-4 decision, the court ruled against the estate of Anna Nicole Smith in the latest chapter of the long-running saga over whether a Texas billionaire's alleged promise to give millions from his $1.6 billion estate to his young Playmate wife trumped a will that left his fortune to his son.

The high court ruled that a bankruptcy judge's decision giving millions to Smith from the estate of oil tycoon J. Howard Marshall was decided incorrectly because those judges do not have the constitutional right to reach outside of bankruptcy cases into a probate case.

The Associated Press contributed to this report.

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