Drug Marketing in Court

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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  • tbdent

    This does not limit free speech but protects privacy. Both physicians and patients need to educate themselves about drugs (i. e. by using free internet resources such as Merck Manual of Diagnosis and Treatment and Physician’s Desk Reference online). This pharmaceutical company tactic is just another marketing ploy – physicians should be informed enough to allow their patients to get generic drugs whenever possible as they are more affordable and have been proven to work just as well in most cases. Many people, as well as insurance companies, cannot afford to pay for brand name drugs when generics are available.

  • GiGi Brakeville

    The drug companies have a lot of power over the medical industry. I had to file a complaint with the FDA on Lisinopril. Blood pressure med to protect kidneys? It caused mine to start failing. I found data to support this and showed the doctor and told her to take me off of it. Her response, “but if I take you off of it, your kidney’s wont be protected” Seriously??? Too many articles are talking about how the medical standards (i.e blood pressure levels etc) are being lowered by drug companies – at the rate we are going, we wil be on a cocktail on drugs.

  • Doris J Dickson

    Personally, I don’t like the fact that my script info is being given by my endo at Brigham & Womens endo unit to the pharmaceutical company. I found this out when I asked for my first Apidra script. Dr. H. commented she was going to get bombarded by the rep because she now had an Apidra user.

    What? NOYFB! How do they (big pharma reps) have access to the script software data? Who at Brigham & Womens Hospital thinks that is a good idea? Certainly not me, the patient! I’d rather go back to the hand written script book. It might take longer to get scripts (as opposed to reciting what I need every time versus simply reprinting) but there’s a point of my privacy I care about.

    It goes far beyond marketing. B&W doesn’t even give out samples.

    Doris J. Dickson

  • Susan Green

    My doctor put me on a statin a couple months ago and I objected to taking more meds, but did it. That same doctor out of the blue sent me an article last week that said the maker of the drug sensationalized the studies on statins to increase their sales and that I as a woman personally would get NO benefit from them and that men who have a certain type of heart desease MIGHT get benifit (1-100. However even then the side effects may be greater than the benifit. Personally, I am getting tired of the pharmaceutical companies being given the right to choose HOW we will die so they can pad their wallets. The FDA is SUPPOSED to protect us. However, on the Dr. Oz show I just saw where another over the counter product they approved (Olistat? Alli)for weight loss MAY be taken off the market due to lifethreatening side effects. Sigh! What is a consumer to think?