Cutting the Gordian Knot: Legal Ban on Gifts/Bribes?

Some time in the past I declared that for purposes of this blog, I was going to stop using the word "gifts" for things that drug and device companies give to physicians and others as part of their marketing campaigns and revert to the more truthful descriptor, "bribes." For this post I'll go back to "gifts" since the sources I'll be citing use that term.

A quick review--first we decided the way to deal with these gifts was to have professional organizations develop codes of ethics, or for Pharma to self-police. Some victories occurred, such as when Pharma felt really under pressure and feared serious federal laws in 2008-9 and decided to throw all the "reminder items" (coffee mugs, pens, etc with drug logos) under the bus. Pharma showed us what they think really is essential for successful marketing by refusing to consider giving up free meals. Mostly this general strategy has been a flop. Codes of ethics either cannot get past the organization's members (such as the AMA House of Delegates) or else make useless distinctions such as how much is the gift worth, is it directly related to patient care, etc. During the era of mostly relying on codes of ethics and self-policing, physicians in the thrall of the drug industry fell from a high of 94% all the way down to a measly 87%-- a drop many of us would consider not quite equal to the actual need for reform.

Then we decided that sunshine laws were the way to go, just disclose all gifts and the amounts and docs will be ashamed of themselves and stop. So several states passed disclosure laws, generating (as in the case of MN) a lot of paperwork that sat in boxes in a warehouse because there was no budget to process it or put it on the web in searchable form. Not until ProPublica got on this just recently (http://brodyhooked.blogspot.com/2010/10/propublica-launches-database-on-docs.html) was there a really user friendly way to access this info. Too soon to see, therefore, if this approach can work.

So, if these past approaches seem to have little effectiveness, what would be better? Two recent works cut the Gordian knot and propose simply outlawing all these gifts and meals.

First I'll mention Marc A. Rodwin's just-out book, Conflicts of Interest and the Future of Medicine: The United States, France, and Japan. Law prof Rodwin (Suffolk U.) has written an interesting volume that I'll be blogging more about in a little while. The point here is that he views these bribes as against the public interest and therefore suitable for legal action, both in defense of prescribing quality and to control costs.

Next is a paper by a law student who reviews all the arguments for saying that these marketing practices are contrary to public interests, and then proposes a model statute to ban gifts and free meals. Joshua Weiss's main concern in this review is the usual defense used by corporations when restrictions on their marketing are proposed, that this is a violation of free commercial speech. Weiss in lawyerly fashion studies all the legal precedents and shows how he's crafted his model statute to resist the various free speech objections, given that the courts have ruled that you can restrict commercial speech if certain conditions are met. A key condition he addresses is how narrowly the restriction is crafted, so as to eliminate only the specific behaviors that are offensive.

Two comments. I am of course not a lawyer. I note that Rodwin apparently sees no problem in suggesting a legal ban on gifts and free meals. Weiss is worried about free commercial speech objections. What seems possible from a non-lawyer's view is to ban gifts and free meals and still permit as much interaction between drug reps and medical folks as the companies want. That way there is clearly no interference with free speech. The drug industry seems to be betting that if these bribes were totally eliminated, drug reps could hardly get a foot in the door. Let's see.

Next comment--don't expect any of this to be easy. Weiss goes after his fears of legal objections to a model statute by defining at some length exactly what relations between Pharma and docs would be still allowed, vs. what would be prohibited. We can expect that the drug companies would make every effort to find the loophole that would allow them to still shovel something into the docs' pockets that would make them feel indebted to the giver, but it will be speakers' fees or consulting fees or whatever seemed the new line of least resistance. Consider again the example of the device industry--paying docs million-dollar royalties, but insisting that the device on which they get the royalty is a different device from the one they do research on or implant into patients (http://brodyhooked.blogspot.com/2010/12/in-defense-of-paranoia-suspecting.html).

So an interesting question is: legal commentators are quite ready to contemplate laws that simply ban gifts and free meals. Is any legislature ready to undertake this step? It would be at least interesting to see how the Pharma lobbyists would fight against such a bill. Would they go on saying "it's not marketing, it's education," their usual mantra to defend detailing, when the only thing being banned is freebies and not any "education"?

Rodwin MA. Conflicts of interest and the future of medicine: the United States, France, and Japan. New York: Oxford U. Press, 2011.

Weiss J. Note: medical marketing in the United States: a prescription for reform. George Washington University Law Review 79:260-292, November, 2010.