Legislating Around the Supreme Court's Holding that Prescriber-Identifying Data is Commercial Speech

Masthead Logo DePaul Journal of Health Care Law Volume 14 Issue 2 Spring 2012 Article 6 Legislating Around the Supreme Court's Holding that Prescriber-Identifying Data is Commercial Speech Jeff Gibellina Follow this and additional works at: https://via.library.depaul.edu/jhcl Recommended Citation Jeff Gibellina, Legislating Around the Supreme Court's Holding that Prescriber-Identifying Data is Commercial Speech, 14 DePaul J. Health Care L. 341 (2012) Available at: https://via.library.depaul.edu/jhcl/vol14/iss2/6 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Health Care Law by an authorized editor of Via Sapientiae. For more information, please contact , . LEGISLATING AROUND THE SUPREME COURT'S HOLDING THAT PRESCRIBER-IDENTIFYING DATA IS COMMERCIAL SPEECH Jeff Gibellina* INTRODUCTION Pharmaceutical manufacturing is big business - really, really big Johnson & Johnson, a leader in the pharmaceutical business. manufacturing industry, generated $61.9 billion in revenue in 2009, resulting in $12.2 billion in profits.' Pfizer, a similarly situated company, generated $50 billion in revenue in 2009, resulting in $8.6 billion in profits.2 Due to the Supreme Court's ruling in Sorrell v. IMS Health, Inc.,' those profits are unlikely to dip any time soon.4 On First Amendment grounds, the Sorrell court struck down a state statute and consequently allowed pharmaceutical manufacturers to continue using a particularly influential form of marketing called "detailing," which entails the use of prescriber-identifying data typically obtained from pharmacies to better target physicians.' After this ruling, a question remained: what could those states that restricted the use of prescriber-identifying data have done differently to lawfully curb the harmful marketing tactic? Regardless of the answer to this question, the Sorrell court erred in finding that the Vermont statute failed to sufficiently protect the state's privacy interest J.D. Candidate, 2013 DePaul College of Law. He serves as the incoming executive text editor on DePaul's Journal of Health Care Law. He grew up in the Chicago land area and received his bachelor's degree at Marquette University. He and his wife, Emily, reside in Forest Park, IL. at MONEY, CNN 500, 1. Global http://money.cnn.com/magazines/fortune/global500/2010/snapshots/235.html (last visited Jan. 2, 2012, 6:16 p.m.) (To get to Johnson & Johnson, click on "101-200" in the drop-down box and scroll down to #108). at MONEY, CNN 500, 2. Global http://money.cnn.com/magazines/fortune/global500/2010/snapshots/324.html (last visited Jan. 2, 2012, 6:16 p.m.). (To get to Pfizer, click on "101-200" in the drop-down box and scroll down to #140). 3. See generally, Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011). 2012, Pfizer Races to Reinvent Itself, May 01, N.Y. TIMES, 4. Kate Thomas, http://www.nytimes.com/20 12/05/02/business/pfizer-profit-declines-19-after-loss-of-lipitor-patent.html (Perhaps Pfizer's profits will dip due to the expiration of its patent on Lipitor, which is completely unrelated to the Supreme Court's ruling in Sorrell.). 5. Sorrell, 131 S. Ct. at 2659. 342 DEPAUL JOURNAL OF HEALTH CARE LAw [VOL. 14.2:341 and should have upheld the constitutionality of the statute. THE POWER OF "DETAILING" One of the underlying forces behind such massive profit margins for pharmaceutical manufacturers is marketing. It is well documented that pharmaceutical companies spend billions of dollars on marketing annually, which includes millions of visits to physicians' offices by pharmaceutical sales representatives.6 Even in 2000, brand-name drug manufacturers spent $4 billion on these face-to-face interactions, also known as "detailing."' The Maine legislature defined "detailing" as "one-to-one contact with a prescriber or employees or agents of a prescriber for the purpose of increasing or reinforcing the prescribing of a certain drug by the prescriber."' Detailing is thought to be particularly effective in persuading physicians to prescribe "high-profit brand-name drugs protected by patent." 9 Because the process of detailing is time-consuming and expensive, drug manufacturers use it to market only those drugs that generate significant profits.o Those profitable drugs are as prevalent as ever, as 90,000 pharmaceutical sales representatives, also known as "detailers," make weekly or monthly trips to physicians' offices on an annual basis." To further emphasize the prevalence of detailing, the average primary-care physician meets with twenty-eight or more detailers every week while specialists meet with fourteen per week.12 Detailers who visit these physicians usually bring drug samples and medical studies that tout the advantages of their employer's pharmaceutical drugs." In addition to promotional materials and pamphlets highlighting the effectiveness of their pharmaceutical products, detailers distribute nearly $1 billion worth 6, David Orentlicher, PrescriptionData Mining and the Protection of Patients' Interests, 38 J.L. MED. & ETHICS 74 (2010) (citing Julie M. Donohue, et al, A Decade of Direct-to-Consumer Advertising of Prescription Drugs, 357 NEw ENG. J. MED. no.7, 673, 676 (2007) (reporting annual expenditures on detailing of about $7 billion between 2002 and 2005); David L. Coleman, et al, Guidelinesfor Interactions between Clinical Faculty and the PharmaceuticalIndustry: One Medical School's Approach, 81 ACAD. MED. no. 2, 154 (2006) (reporting that pharmaceutical companies employ more than 80,000 sales representatives and that the average physician meets with a sales representative four times per month); John Russell, Lilly Changes Course as it Shrinks its Sales Force, INDIANAPOLIS STAR, Jan. 17, 2010, at Al8 (reporting that drug companies appear to be reducing their sales forces.). 7. IMS Health Inc. v. Ayotte, 550 F.3d 42, 46 (1st Cir. 2008). 8. ME. REv. STAT. ANN. tit. 22, § 1711-E(l)(A-2) (West Supp. 2010). 9. Sorrell, 131 S. Ct. at 2660 ("Once a brand-name drug's patent expires, less expensive bioequivalent generic alternatives are manufactured and sold."). 10. Ayotte, 550 F. 3d at 46. 11. IMS Health Inc. v. Mills, 616 F.3d 7, 14 (1st Cir. 2010). 12. Ayotte, 550 F.3d at 47. 13. Mills, 616 F.3d at 14. 2012] PRESCRIBER-IDENTIFYING DATA 343 of free samples annually.14 Detailers gain access to offices by offering physicians and staff "latest pharmacological regarding the information objective developments," thereby saving the physicians' time that would otherwise be used to educate themselves on such developments." Furthermore, detailers gain entry by bringing small gifts to physicians and staff, by hosting complimentary lunches, and by handing out the aforementioned complimentary drug samples." During these meetings, a physician can ask questions following a presentation and the detailer typically will establish a follow-up schedule with (...truncated)