The Expense of Free Speech

8/6/08

THE EXPENSE OF FREE SPEECH
By
Richard Davis
GUILFORD-. Last week a case played out in Federal Court in Brattleboro that revolved around the free speech rights of the pharmaceutical industry. The big boys are crying foul and saying that a new Vermont law, Act 80, will drive up drug prices and stifle innovation. It’s hard to have a lot of sympathy for an industry that is perhaps the most profitable on the planet (neck and neck with the oil companies), an industry that profits from the sickest and most vulnerable people in our society.
The Vermont legislature passed Act 80 this year and it has a provision that allows the state to prevent drug companies and data companies from using what is called “prescriber identifiable data”. The drug and data companies contend that this information is speech and, as such, they have a constitutional right to that information. Their premise is that by not having free access to that information their free speech rights are being violated.
Similar laws in New Hampshire and Maine were struck down on those grounds. But the Vermont law has an opt-out provision for prescribers and that means they can simply indicate they do not want their information shared. Prescribers who do not opt out will have their information bought and sold at obscenely high prices. None of the prescribers will profit from transactions that push already ridiculously inflated drug prices to new heights .
Issues in this case revolve, in large measure, around the activities of drug detailers. They are the sales people employed by the drug manufacturers who go to doctors’ offices, hospitals and other health care locations to try to persuade prescribers to use their products. Their bosses will tell you they provide a valuable educational service to doctors who don’t have the time to learn about new drugs.
Their bosses also contend that the best way for these detailers to do their job is to have access to all of the prescribing information of doctors. Here’s how it works. Data mining companies such as IMS, one of the plaintiffs in this case, develop contracts with pharmacies and buy information that tells them what prescriptions doctors are writing. That information is then sold to the drug manufacturers who use it to target their sales pitches to doctors.
There was testimony from Scott Tierney, Director of Managed Care Operations for CVS/Caremark, the largest provider of prescriptions in the U.S. CVS provides data to IMS and Verispan and that is a source of revenue for CVS. CVS does not tell MDs that CVS is selling the prescriber identifiable data, but Tierney said they do tell customers of CVS. You can bet your last dose of Prilosec that all of these activities drive up the cost of the drugs we all struggle to pay for.
Testimony from Mr. Robertson, the Assistant VP for Sales, Planning and Inserts for Wyeth, one of the world’s largest pharmaceutical manufacturers, provided insight into how drug detailers are trained and how they operate.
Here’s a breakdown of Wyeth’s U.S. field sales force:
1500 for family practice and internal medicine
300 for psychiatrists
400 for institutions (hospitals and teaching hospitals)
80 for rheumatology
85 for oncology
17 for Hemophilia
Sales reps receive 9-12 months of training which is a combination of home study, online work and classroom training. Most training is geared to having them know what is on the medication package inserts.
According to Robertson, Wyeth uses prescriber identifiable data purchased from IMS to “know which physicians it is effective for sales reps to call on, to see which products in our portfolio physicians may have the most interest in.”
It was revealed that the average length of face-to-face interaction between MDs and sales reps is 2 to 2.5 minutes. When asked what purpose giving samples to MDs serves Robertson said that it is to see if MDs can get the desired therapeutic effect and to titrate dosage. If you willingly swallow that bitter pill then you probably believe we are fighting a war in Iraq because weapons of mass destruction are a threat to the United States.
The Vermont defense attorney asked Robertson if he considered the drug industry to be competitive. He danced around the question and wouldn’t explicitly state that it was competitive. Good coaching by the plaintiffs no doubt, or just a lot of experience bending the truth.
Sales reps receive a salary and they “make more money if they achieve or exceed their goals”, according to Robertson. Goals are the number of prescriptions in their territory. Supervisors make more money if the sales reps make more money.
Perhaps one of the most revealing questions that I heard was asked by the Vermont attorney. “Couldn’t sales reps get the prescriber information they are looking for during a visit to a doctor?” Robertson answered “Yes” but said it would be more “efficient” to buy the prescriber identifiable data.
Draw your own conclusions. I will be writing more about this trial in the coming weeks. Judge Murtha will be deliberating over this case so public discussion is important.