On February 5, John Oliver opened his new season of Last Week Tonight with a 17-minute segment attacking the unsavory advertising practices of US pharmaceutical companies. The United States and New Zealand are the only two countries in the world that allow pharmaceutical companies to advertise prescription medications directly to patients, which, as Oliver highlighted, is why American television is so saturated with “sleep inducing moths” (Lunesta commercials) and “old men…varnishing chairs” (Viagra advertisements). Pharmaceutical companies in the United States are frequently criticized for marketing drugs directly to consumers and doctors. In recent years, new federal legislation has aimed to increase transparency in pharmaceutical marketing practices, and several drug companies have paid costly settlements after engaging in criminal marketing practices. In 2012, GlaxoSmithKline paid $3 billion dollars after being charged with crimes including off-label promotion and paying kickbacks to physicians. The settlement was enormous—the biggest pharmaceutical lawsuit settlement ever—but it represented only a fraction of the company’s $25 billion annual profits and $118 billion market capitalization. Oliver’s criticism ultimately focused on the pharmaceutical industry’s well-documented practice of marketing its product directly to healthcare. While both federal law and the American Medical Association regulate these marketing practices, a recent PLoS Medicine study suggests that the codes that restrict pharmaceutical advertising are weak and frequently disregarded by pharmaceutical companies. Thus, Oliver, as well as the rest of the media, has focused his criticisms on the pharmaceutical companies themselves. The physicians who accept payments to speak or advocate for certain drug companies, however, are met with fewer criticisms and fewer consequences. However, in order to further deter pharmaceutical companies from committing health care fraud and illegal marketing practices, the scope of criticism and scrutiny must widen to include the healthcare providers involved.
Oliver ended his Big Pharma monologue by urging viewers to look up their doctors using a new searchable database of physicians who have accepted payments from pharmaceutical companies or medical manufacturers. In the 2000s, 17 drug companies were compelled to release information about the money they paid doctors for speaking engagements, research and consulting. Legal settlements pushed for the publication of much of the new information. The database was created last year in accordance with the Open Payments Data Act, a provision of the Affordable Care Act that requires medical product manufacturers to disclose any physician investments in those companies, making previously inaccessible information now available to the public through the database. “Physician Investments” include anything from meals to travel expenses to speaking engagements paid for by a medical product company. The database only gives details about the amount of the payment and the broad category that the payment falls into, including food and beverage, travel or education. While these payments and gifts are regulated by both federal law and the American Medical Association, a recent PLoS Medicine study suggests that the codes that restrict pharmaceutical advertising are weak and frequently disregarded by both pharmaceutical companies and doctors alike. Indeed, many code infractions—paying kickbacks to doctors, for example—require the complicity of doctors with pharmaceutical companies and pharmaceutical ad reps.
The website database, however, is incapable of catching doctors who are accepting gifts or agreeing to promote or prescribe drugs outside the boundaries of either federal of American Medical Association regulations. Furthermore, the database does not currently require companies to disclose continuing medical education (CME) payments made to physicians by third-party commercial organizations funded by third-party grants. The pharmaceutical company essentially still pays for the marketing aimed at physicians via grants awarded to a third-party organization with industry ties. It’s a subtler method of boosting prescriptions: Direct-to-consumer advertisements are highly visible and aimed at encouraging patients to take action to address the advertised ailment with the advertised medication (“ask your doctor”), but by marketing to physicians, pharmaceutical companies can boost the sales of their particular brand, which, for individual companies in a competitive drug business, often reaps higher gains.
Doctors and pharmaceutical companies may always coexist, but the methods of advertising and the scientific method don’t have to.
It’s easy to condemn pharmaceutical companies for their relationships with doctors and physicians. Yet the companies use these marketing strategies because they work and because there is a sizeable population of doctors for whom the benefits of accepting pharmaceutical advice, speaking engagements and food gifts outweighs the negative repercussions. Few doctors lose their licenses for accepting kickbacks; in fact, a 2009 New York Times article reported that prosecutors have traditionally been unwilling to pursue doctors, because “they believed that juries would sympathize with respected clinicians.” Pharmaceutical companies and manufacturers—large, faceless multibillion-dollar corporations—are easier to criticize and easier to convict.
While many physicians maintain that pharmaceutical advertising cannot sway them in their treatment decisions, there is a well-documented correlation between physicians who accept payments from a pharmaceutical company and the number of prescriptions that doctors write for that pharmaceutical company’s product. Furthermore, accepting perks like food, travel expense payments and lodging expense payments from pharmaceutical companies (like those documented on the new federal database) carry no repercussions from the American Medical Association. Doctors are not penalized for accepting dinners or jobs from pharmaceutical companies, and pharmaceutical companies employ some doctors as consultants.
The AMA argues that relationships between pharmaceutical companies and doctors are essential because companies can educate doctors about new treatment options and specific medications. But pharmaceutical companies are private corporations: they make a profit or they go out of business, and the methods they use to educate doctors are aimed at increasing the number of prescriptions written for their drugs. Because of the plethora of similar or related drugs on the market, the pharmaceutical industry is, in some ways, a buyer’s market—since doctors have the ability to choose which drugs they prescribe—which means that pharmaceutical companies compete with one another when advertising their brand of drugs to doctors. Doctors, as individual gatekeepers to drug sales, have the opportunity to associate themselves with the company that makes them the most appealing offer, not just the company who sells the most effective treatment.
While increased scrutiny of pharmaceutical company advertising to consumers and to doctors is necessary to prevent medical fraud, kickbacks and potentially dangerous consequences of off-label branding, the scrutiny must extend to those doctors who accept employment and gifts from pharmaceutical companies in order to maintain the integrity of the medical profession and healthcare as a whole. Patients must be able to trust doctors to provide them with the best feasible medical care. This means that doctors cannot be allowed to prescribe medications because of a catchy commercial jingle, a persuasive sales pitch or a free lunch (or dinner or plane ride or hotel stay). The current leeway afforded to doctors places the impetus on pharmaceutical companies to advertise better to doctors than their competitors and to offer doctors more rewards for prescribing one brand of drug instead of another. But if the Justice Department were to enact more specific legislature or the American Medical Association more stringent rules aimed at preventing doctors from accepting pharmaceutical gifts, the companies would have fewer opportunities to sway doctors with anything other than hard science. Doctors and pharmaceutical companies may always coexist, but the methods of advertising and the scientific method don’t have to.