Pharma marketing research gains tenuous hold in frosty Minnesota

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Fienberg: state-level reporting laws could preempt Sunshine act
Fienberg: state-level reporting laws could preempt Sunshine act
The Minnesota pharmacy board maintained that it's legal to pay doctors to answer bona fide marketing surveys, but legislation being debated may keep the state a marketing research “dead zone,” said one lobbyist.

Recently, the Minnesota Board of Pharmacy, which collects physician gift data under a 1993 state law, clarified that it does not consider payments to physicians illegal, as long as the payment compensates the doctor “in connection with a genuine research project.” Pharmaceutical companies must still file an annual report with the board concerning such payments.

The clarification, added in an FAQ on the board's website last month, reflects its long-standing position, Cody Wiberg, the pharmacy board's executive director, told MM&M. “Even under the old FAQs, those sorts of payments were allowed. It's just that people out there were misinterpreting this FAQ, perhaps because of the way we wrote it.”

Legitimate surveys, Wiberg explained, involve those which manufacturers hire a marketing-research company to carry out. Such studies, in most instances, are blinded—the physician never knows which company is the sponsor, and payments come through vendor, not manufacturer.

“It's a good step,” said Howard Fienberg, director of government affairs for the Marketing Research Association (MRA), one of several who lobbied for the clarification. The board had not meant to dissuade industry from conducting legitimate marketing research, he said. “The difficulty is that existing [Minnesota] law is very vague and badly written.”

The problem stems from Minnesota's 1993 statute banning physician gifts over $50. To some, the board had seemed to take a skeptical view of the practice of paying physicians to garner their participation in marketing-research surveys; an earlier FAQ characterizes such payments as “inappropriate.”

“The original FAQ was talking about, not marketing research, but marketing surveys—direct payments to practitioners for filling out a survey," noted Wiberg.

MRA, collaborating with two other marketing-research trade groups—the Pharmaceutical Marketing Research Group (PMRG) and the Council of American Survey Research Organizations—prompted the board to make the distinction clear.

Don't look for Minnesota to become a hotbed of bona fide marketing research just yet, however. The ground could shift again if new legislation is passed.

At a joint committee hearing in the Minnesota House and Senate last week, three bills related to various aspects of pharmaceutical marketing were discussed. One bill, H.F. 1641, would expand what Fienberg calls the marketing-research “dead zone” to medical-device research. “It's not clear if marketing research would be banned or not [under H.F. 1641],” he said, “but that legislation would make an existing situation even worse.”

Drug and device-company payments in connection with marketing research would need to be reported, and firms have stopped doing research in states with even the most basic reporting rules, Fienberg said. The only exception has been Massachusetts, where MRA won an explicit exclusion for marketing research in regulations last year.

Representatives from Massachusetts, as well as New Hampshire and Vermont, were also on hand at the hearing to report how their states handle physician gift reporting. New Hampshire has a reporting requirement, while Vermont passed a gift ban last year.

Members of the Minnesota Commerce and Labor Committee and the Senate Business Industry and Jobs Committee seemed to appreciate the tenuous situation for marketing research in their state, said Fienberg, who testified at the hearing. “They do not intend or want to cripple their economy any more than it has been.”

Nor does the board want to continue to be in charge of interpreting the gift-limiting statute. H.F. 1641 would shift the regulatory authority to the state Department of Health and Human Services. “We will continue to do what we will under current law,” Wiberg said, adding that the board would not be opposed to having the health department take over the gift-ban payment reporting initiative.

“I don't intend to let it get that far,” said Fienberg. “We'd like to see a blanket exclusion of bona fide marketing research from both reporting requirements and a ban.”

Whether the bills—H.F. 1641, along with one related to data-mining and another which would create an academic detailing program—are to come up for a formal vote is uncertain. Rep. Tina Liebling and Sen. John Marty, who have been active on a range of transparency issues, are dedicated to the legislation.

“Issues that aren't directly related to economic stimulus tend to get less attention,” Fienberg said.
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