Generic Manufacturers Win Preemption In Mensing

The Court decided 5-4 in favor of generic preemption today in Pliva, Inc. v. Mensing, No. 09–993, slip op. (U.S. June 23, 2011). We’d like to talk about Mensing, but it’s a metoclopramide case, and consistent with blog policy we don't comment on cases in which Dechert is involved – so we can’t, at least now. Sorry, our lips are sealed.

Sorrell – Pharmaceutical Detailing Is First Amendment Protected

In the second interesting opinion of the day, the Court decided Sorrell v. IMS Health, Inc., No. 10-779, slip op. (U.S. June 23, 2011). Sorrell involved a state statute intended to interfere with pharmaceutical detailing by precluding detailing companies from obtaining access to information (available from pharmacies) about which doctors prescribe what drugs, or even if they got it, from using that information without the prior consent of each and every individual physician. Slip op. at 2-4. On top of that, the statute provided for state-financed “counter-detailing” – pushing cheaper, often generic, competing drugs. Id. at 4-5. “Data miners,” who gather and sell this information, and pharmaceutical companies challenged the statute as a violation of the First Amendment.

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