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IMS, a firm that specializes in gathering and analyzing data on the pharmaceutical market and disseminating it for a fee, is commonly regarded as “the authority” on the industry's promotional expenditures. Relying on IMS data, the U.S. GAO concluded that, in aggregate, pharmaceutical companies spend more on research and development than on marketing – US$29.6 billion on R&D versus US$27.7 billion for promotion. However, a reanalysis by Gagnon and Lexchin that included data from CAM (Cegedim, a global company that audits promotional activity worldwide as well as in the U.S.) estimated that promotional spending by the industry in the U.S. was more than twice as high as the IMS estimate for 2004, the latest year for which data was available. PLoS Medicine 5, no. 1 (2008).Google Scholar

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For example, PhRMA's 2002 Code on Interactions with Healthcare Professionals affirmed the basic principle “…that a health care professionals care of patients should be based, and should be perceived as being based, solely on each patient's needs and the health care professional's medical knowledge and experience.” The Code interpreted this principle as ruling out free tickets to entertainment and recreational events. Free golf balls and sports bags were prohibited because they were not primarily of benefit to patients. Free gas fill-ups were excluded on similar grounds. De minimis items ($100 or less) intended primarily for patient benefit were OK. Stethoscopes and medical textbooks were OK. Logo-bearing notepads, pens, and “reminder” items are OK. Continuing the practice of providing occasional meals is OK, provided that they are “modest by local standards,” occur in a venue conducive to communication of scientific or educational value, and no spouses allowed. (No more “dine and dash,” no more dropping off food for the office). Gift certificates given as premiums for attending drug talks is prohibited. Reimbursement for meeting travel expenses? No longer allowed. Payments to compensate physicians for bona fide services, such as speaker fees, was still OK. PhrMA's Revised Code (effective January 1, 2009) prohibits all reminder items, as well as stethoscopes and medical textbooks).Google Scholar

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Campbell, E. G. et al., “A National Survey of Physician-Industry Relationships,” New England Journal of Medicine 356, no. 17 (2007): 1742–1750. The study asked 3167 physicians in six specialties whether, in the past year, they had received: Food or beverages in the workplace; free drug samples; honoraria for consulting; payment for service on scientific advisory boards or on boards of directors; payment in excess of costs for enrolling patients in industry-sponsored trials; costs of travel, time, meals, lodging, or other personal expenses for attending meetings; gifts received as a result of prescribing practices; free tickets to cultural or sporting events; free or subsidized admission to meetings or conferences for continuing medical education (CME) credits. 94% of physician-respondents reported some type of industry relationship within the last year. 83% reported getting food in the workplace. 78% reported getting drug samples. 35% got reimbursement for attending professional meetings or continuing medical education. 18% got paid for consulting, 16% for giving lectures, 9% for serving on advisory boards, 3% for enrolling patients as research subjects in clinical trials. 7% reported getting free tickets to cultural or sporting events. Family medicine doctors met more frequently with industry reps than physicians in other specialties and were more likely to get drug samples, or reimbursements than pediatricians and anesthesiologists. Hospital- or clinic-based physicians met with reps less frequently than doctors in solo or group practice. Cardiologists were more than twice as likely to get paid for consulting or giving lectures than pediatricians, anesthesiologists, or surgeons. Industry has an incentive to target its marketing resources on physicians perceived as influencing the prescribing behavior of other physicians. The survey's results were consistent with that prediction. Overall, all specialties except anesthesiology seem to be meeting more frequently with industry reps than they did only seven years ago.CrossRefGoogle Scholar

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If the sheer number of physicians' interactions with industry is the right outcome measure for judging the reforms' effectiveness, a recent study found that physicians are meeting more frequently with industry representatives than ever. A 2007 survey of 3167 physicians in six specialties found that all specialties except anesthesiology were meeting more frequently with industry than they did only seven years ago. It should be noted however, that only 7% reported receiving personal items as “gifts” from industry. See Campbell, supra note 9.Google Scholar

Stanford, Yale, the University of Michigan, and the University of Pennsylvania have announced their commitment to comply with the Brennan group's recommendations. The University of California at Davis joined their ranks in the summer of 2008.Google Scholar

The commercial speech doctrine traces to Valentine v. Chrestensen, 316 U.S. 52 (1942) which sustained a ban on the distribution of handbill advertisements soliciting customers to pay admission to tour a submarine. The Court viewed the ban as a regulation of business activity rather than an infringement of First Amendment protected speech. Later cases made it clear, however, that speech does not lose 1A protection simply because of a commercial context. The doctrine is vexed, complicated and somewhat arbitrary in application. I cannot give it a fair analysis here, so I leave the idea of “commercial speech” intuitive but vague.Google Scholar

“Zero Tolerance,” a form of ethical absolutism, has become an unfortunately popular surrogate for “ethical seriousness.” It manifests in pronouncements of state medical boards. Thus the North Carolina Medical Board's position statement on “The Physician-Patient Relationship provides, ‘Patient trust …requires that: there be no conflict of interest between the patient and the physician or third parties.’” NCMB Forum 4, no. 1 (2007): 12.Google Scholar

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The AMA's Council on Ethical and Judicial Affairs proposed amendments to its Constitution and Bylaws that include the following: “Individual physicians and institutions of medicine, such as medical schools, teaching hospitals, and professional organizations (including state and medical specialty societies) must not accept industry funding to support professional education activities.” Report 1 of the Council on Ethical and Judicial Affairs (A-08): Industry Support of Professional Education in Medicine.Google Scholar

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