A group of Nevada doctors asked the Ninth Circuit on Monday to find GlaxoSmithKline LLC and the Southern Nevada Health District are not exempt from antitrust claims over GSK's sale of discounted vaccines through a federal program, saying the health district sold the shots to businesses instead of low-income patients.

The doctors at the Vaccine Center LLC are seeking to reverse a lower court's 2014 summary judgment ruling that found the state program was protected by a carveout in the Robinson-Patman Act, which prohibits price discrimination to retailers. That exemption applies to nonprofits using discounted goods for their "own use," and the district court said this applied to the health district's discounted purchase of hepatitis, tetanus and diphtheria vaccines from GSK under the federal 340B program, which provides discounted drugs to clinics, hospitals and other safety net health programs.

"Ostensibly there could be activities by Southern Nevada that would stretch the bounds of the Nonprofit Institutions Act and its institutional function, and then you would have a hard question before you," GSK attorney Stephen J. Kastenberg of Ballard Spahr said, referring to the law that clawed out the exemption to the Robinson-Patman Act.

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