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Drug Marketing in Court

Quinn Phillips

May 4, 2011

The marketing of drugs to doctors has long been the subject of controversy. As we noted a couple of years ago, many practices of pharmaceutical companies have come under fire — including providing doctors with meals, giving them free drug samples, and offering them free medical “refresher” courses. Marketing drugs to doctors accounts for a huge share of drug companies’ spending — more, as we noted in the earlier post, than they spend on research or on consumer advertising.

Naturally, some people believe that this level of marketing impairs the objectivity of doctors when they decide what drugs to prescribe. And since cheaper generic drugs do not have the marketing muscle of pharmaceutical companies behind them, drug marketing may lead to significantly higher prescription drug costs — both for taxpayers who fund public insurance programs, and for anyone who pays for private health insurance. In Vermont, the legislature passed a law in 2007 that prohibits the sale of data on what doctors prescribe unless a doctor opts to allow his or her data to be used. Such data, when available, lets pharmaceutical companies market drugs to relevant doctors — for example, diabetes drugs to endocrinologists. The purpose of the Vermont law, according to the legislature, included

protecting the privacy of prescribers and prescribing information, and to ensure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.

In response to the law, a prescription-data marketer and a pharmaceutical industry group sued the state (the above quotation is found in the original District Court opinion). After winding its way through the appeals process, the case landed before the US Supreme Court last week.

According to a New York Times article on the case, oral arguments before the Court — which took place last Tuesday — focused on whether the law infringed on freedom of speech, as guaranteed by the US Constitution’s First Amendment. Most justices seemed skeptical of the argument — advanced by the lawyer for the state of Vermont — that the primary purpose of the law was protection of doctors’ privacy, given that the law itself mentions “promotion of less costly drugs” as one of its aims and that prescription data is not withheld from insurance companies or law enforcement agencies. Justice Ruth Bader Ginsburg expressed concern that Vermont was trying to “lower the decibel level of one speaker” so that its message to doctors, in support of generic drugs, could be heard better.

What do you think — does prohibiting the sale of data on doctors’ prescriptions (unless they choose to allow it) amount to limiting the free speech rights of pharmaceutical companies? If so, are there better ways to ensure that doctors receive balanced information on drugs — or should government not get involved in this process? If you lived in a state with a law like Vermont’s, would you be afraid that your doctor might not have up-to-date information on drugs? Should doctors be trusted to educate themselves and to remain unbiased, or should there be professional rules in place to ensure this? Leave a comment below!



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