A bitter

pill to

swallow
Advertising is a protected form of commercial free speech and Maine has embarked on a dangerous path to absolutely require – under threat of $10,000 fines – pharmaceutical companies to report how much they spend on marketing.

Advertising campaigns by pharmaceutical companies irritate doctors because patients appear in examination rooms and ask for specific and very expensive medications. Advertising also cuts into what the industry consistently argues are very precious research and development dollars.

But pharmaceutical advertising, if it is truthful (and it usually is), is free speech. As much as we don’t like the slick promotion of prescription drugs, companies are guaranteed protection. If they aren’t, we fling open the door to government interference with all free expression.

That said, an equally compelling reason not to sign this bill into law is that it simply doesn’t satisfy any valued purpose.

The bill, An Act to Require Full Disclosure of Prescription Drug Marketing Costs, originally required manufacturers or labelers of prescription drugs that “employs, directs or utilizes marketing representatives in this state” to report marketing costs for prescription drugs in Maine.

During the committee process, the bill was amended to exclude disclosure of national or regional advertising campaigns.

So, full disclosure is lost. What we’ll get is fractional disclosure of the costs of Maine-only marketing representatives and Maine-only advertisements.

If the intent of the Legislature is to find out how much money the pharmaceutical industry is spending on marketing, this is a slap-dash way to go about it because the information to be produced is so limited it is almost useless.

The purpose of the bill is noble. Maine, as the administrator of Medicaid and Medicare, simply wants to determine how much money prescription companies spend on marketing and how that impacts health care costs. However, since most drug-makers employ companies outside Maine to produce advertising for regional and national media, the amount that might be reported in Maine would do little to determine how marketing affects local consumer cost.

If Maine proceeds, the disclosure requirement might actually increase health care costs.

The reporting requirements under the bill are not simple; compiling figures and paying state fees to process the paperwork won’t be cheap and drug makers will definitely pass those costs through to consumers.

Drug makers may spend more on marketing – an estimated $15 billion annually -than on research and development, but Maine’s bill -and similar bills in Hawaii and other states -is too narrowly focused to root out the truth and strains constitutional protections.

However, if the Food & Drug Administration, which regulates the pharmaceutical industry, were to require some kind of accounting of marketing costs as a way to evaluate the efficient use of millions in public funding provided to the drug industry, that may be permitted as a form of financial accountability.

The pharmaceutical industry is greedy. It is powerful. It has exhibited next to no ability to compromise on these excesses. That makes the industry invidious, but that’s not reason enough to curtail constitutional freedoms.


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