10 days that nearly shook us
On April 30, US District Judge Paul Barbadoro decided that the New Hampshire legislature had trampled the First Amendment when members attempted to ban all commercial use of prescribing data. Judge Barbadoro observed that, “Ordinarily, states should be given wide latitude to choose among rational alternatives when they act to benefit the public interest.” But, he said, “When states adopt speech restriction as their method, courts must subject their efforts to closer scrutiny.”
Upon closer scrutiny, he concluded that “the law cannot be enforced.” While NH Attorney General Kelly Ayotte says the state will appeal, the record clearly supports the First Amendment arguments by plaintiffs IMS/Verispan and by the Coalition for Healthcare Communication (CHC) “friend of the court” brief in the case. This court decision should sober the like-minded legislators in several other states who are considering similar bans.
On May 1 and 2, CHC executive director, John Kamp, and yours truly, trooped to Washington for meetings with the AAAA Government Relations Committee and a meeting with the AAAA, ANA and AAF. Leading lobbyists of the DC trade associations met with Jim Davidson, head of the Advertising Coalition, and leading Hill negotiators on the Senate version of the PDUFA reauthorization bill. Things heated up quickly as dueling lobbyists and legislative aides debated the provisions of the bill and its 62 amendments.
Armed by letters from leading First Amendment scholars and support from broadcasters, publishers, drug companies and advertising execs, Davidson’s team built support for a substitute amendment that dropped the most egregious marketing limits, including the DTC ban. The substitute was lead by Sen. Roberts (R-KS) and co-sponsored by Sens. Burr (R-NC), Harkin (D-IA) and Coburn (R-OK). Stay tuned, however, because Reps. Waxman (D-CA) and Markey (D-MA) are sponsoring a House version of the bill that includes a three-year DTC ban.
On May 8, Kamp, CHC Education Foundation head, Jack Angel, and CME Committee chair, Martin Cearnal flew to a meeting of the AMA Task Force on Industry Collaboration in CME. The coalition leaders focused the group on two alarming threats to company-sponsored CME, the recent Senate Finance Committee Report on drug company grants for CME and the ACCME’s newly proposed limits on commercial providers. In the end, the task force created a team to support efforts to educate policy makers on the value of supported CME and to help strengthen policies and processes of ACCME. CHC members urged the Task Force to support new “conflict of interest” policies that fairly treat both not-for-profit providers and commercial providers.
Why should you care about this? Because it has never been more clear that any business associated with the industry could see its future dramatically altered with the stroke of a judicial or legislative pen.
As the saying goes: “Eternal vigilance is the price of liberty.”
Harry Sweeney is executive committee chair for Coalition for Healthcare Communication and chairman, CEO of Dorland Global