"We're still weighing our options," Asay said. Those include appealing to the same 2nd Circuit Court en banc—that is, before all 10 of its judges—or filing a petition for a writ of certiorari, a formal request to the Supreme Court to hear an appeal.
Jody Fisher, vice president of marketing for SDI, parent corporation to Verispan, said the high court has already turned down a company request on an appeal of a 1st Circuit Court decision in the New Hampshire case, so the company is "very excited" about the New York decision. Verispan's next steps are to be determined, he said.
One immediate effect of the appeals court's ruling is that the Vermont law, which went into effect in July 2009, has been enjoined, Fisher said.
Maine state Rep. Sharon Treat is executive director of the National Legislative Association on Prescription Drug Prices, or NLARx, which filed a friend-of-the-court brief in the Vermont case and has been an active observer of or participant in defense of the Maine and New Hampshire laws as well.
Treat said that a number of state legislators have similar bills they want to introduce in January and that others have been waiting on the outcomes of these cases with an eye toward filing bills as well. Regardless of what Vermont does, she said, there is a reasonable possibility that the issue will be decided by the U.S. Supreme Court.
"It's anybody's guess whether the Supremes would be interested, but there is a possibility when there is a split in the circuits," she said.
"The decision says there isn't a state interest in what happens with that information, but we think there is a strong case laid out" for the public welfare to not allow the prescriber-identified prescription data to be used in detailing, she said.