Former rep to argue First Amendment protection in court
A date for oral arguments, which will be heard by the 2nd Circuit Court of Appeals (located in New York City), has not yet been set, according to Richard Samp, chief counsel at the Washington Legal Foundation (WLF). The WLF filed a brief with the court last April, and filed a motion in November to present oral arguments on behalf of the sales rep, which the court granted. Soon afterward, the Justice Department requested that the court allow Douglas Letter, a top DOJ appellate attorney, to also present oral arguments, Samp told MM&M. Letter did not immediately respond for comment.
The case stems from a sting operation in 2005 wherein Alfred Caronia, a sales rep for Orphan Medical, a wholly owned subsidiary of Jazz Pharmaceuticals, was asked by an internal medicine doctor (and government informer) to give a presentation on Xyrem. At the time, Xyrem was indicated only for cataplexy, and has since been approved for the treatment of narcolepsy, to reduce too much daytime sleepiness.
For the Xyrem presentation, Caronia and Peter Gleason, a physician whom Caronia had used in promotional efforts with physicians, met with the informer, and Gleason answered questions about off-label uses of Xyrem. After the meeting, both Caronia and Gleason were indicted on felony charges related to misbranding Xyrem, according to a report in the New York Law Journal.
Samp said the WLF believes that the First Amendment protects the right of individuals to speak truthfully about off-label uses. The government claims that it does not punish speech in off-label cases; it punishes conduct. “But then they point to speech,” said Samp.
The 2nd Circuit court initially said it would not hear oral arguments in the appeal, but the WLF brief made the court change its mind, according to Samp. Jazz plead guilty and paid $20 million in 2007 to settle criminal and civil investigations into illegal Xyrem marketing, and entered into a five year CIA.