State Bill Nixes Gifts But Still Restricts

Jul 23, 2008

It was win-one/lose-one for the pharmaceutical industry last Wednesday when the Massachusetts House of Representatives eliminated a provision in a healthcare spending bill that would have banned gifts from pharma sales reps to physicians—then added (and passed) a provision banning the sale and transfer of prescription drug information that identifies doctors and their prescribing habits.

The state Senate version of the bill, passed earlier this year, included the ban on gifts, but lacked the prohibition against selling prescribing information. The two bills will now go into a resolution process expected to be completed later this month.

Scheduled to take effect in November 2009, the prescription data is similar to legislation enacted by New Hampshire and Maine. Both of those state laws were struck down in federal court in December 2007.

A spokesman for IMS Health, one of the companies that brought the federal suit, told Pharmaceutical Executive that they are monitoring the situation, and preparing cases in Massachusetts and other states that pass similar legislation. "It's a big decision. With these types of laws, the federal courts [in the past] have twice overlooked them," said the IMS spokesman. "We are arguing on the basis that these data are very valuable for patient safety and getting new medicines to the appropriate physicians and appropriate patients. It makes for a more efficient system, and the courts have looked at the laws and ruled them unconstitutional because they were found in violation of the First Amendment's free speech."

IMS Health, a provider of business intelligence and strategic consulting services for the pharmaceutical and healthcare industries, expects a decision any day on the circuit court of appeal in New Hampshire. "It's kind of ironic that it's right around the corner from Massachusetts's decision. You wonder why they wouldn't just hold off entirely until after the First Circuit rules."

As reported last week, the Pharmaceutical Research and Manufacturers of America (PhRMA) established a new code of ethics that eliminates logo-embedded tchotchkes, and prohibits company sales reps from providing restaurant meals to healthcare professionals.

In Massachusetts, instead of banning gifts entirely, the revised bill requires drug firms to adopt a code of conduct that follows PhRMA's rules on appropriate interaction with healthcare professionals. Lisa Kaplan Howe, a private market policy manger with the Boston-based consumer coalition HealthCare for All, is a strong supporter of the legislative gift ban. "A lot of data shows pharmaceutical company gifts are highly influential, even down to pens and paper," said Kaplan Howe. She also pointed out that the restriction will lead to "better prescribing decisions, better cost controls, and higher quality of care."

Kaplan Howe is hopeful that a final bill will reach the governor by the end of the month. "Doctors are very pressed for time, and end up relying almost exclusively on information from pharmaceutical companies. At the end of the day, pharmaceutical companies are out to make a profit; they report to shareholders. We think it's important that they receive unbiased information and that is what this program will do," she said in reference to the evidence-based outreach and education program about prescription drugs aimed at healthcare providers.