Legislation Aims To Curb Data Mining
Rep. Stephen Kulik.
Most people are unaware that after they fill a prescription, many pharmacies turn around and sell information about that prescription to pharmaceutical companies in order for them to market their drugs to physicians. This practice is called data mining and it has negative consequences for the public health, health care costs, and privacy.
Through data mining, pharmaceutical companies are able to target-market their high-cost, brand-name drugs to prescribers who either are already prescribing their medications in order to encourage them to continue to do so, or to those prescribers who are not prescribing the pharmaceutical company’s drug in order to entice them to start.
Big Money
In 2005, the pharmaceutical industry spent $29 billion on promoting and marketing their drugs, with more than $7 billion spent marketing directly to the physicians who prescribe them. This kind of marketing has been shown to lead to excessive prescribing of name-brand drugs which is not only costly to our health care system, but can have significant public health consequences, and is most often done without the physician’s consent or even knowledge.
When a pharmaceutical company markets drugs based on prescriber data, the public health is at risk because instead of physicians learning about the latest pharmaceuticals in an unbiased way, they are being fed a sales and marketing pitch. This leads to inappropriate prescribing and over-prescribing of medications which a patient may not benefit from or which may be harmful.
Opponents’ Arguments
Opponents of legislation banning data mining often proclaim that unless pharmaceutical companies are able to continue this practice, crucial research and clinical trials will not be possible. This is absolutely false. All of the current and proposed data mining legislation to date, in Massachusetts and elsewhere, only prohibits the practice of data mining for marketing purposes, not for purposes such as research and clinical trials, formulary compliance or patient care management.
Opponents of data mining legislation have also challenged it as unconstitutional. In late 2008, however, the First Circuit Court of Appeals upheld New Hampshire’s data mining law which had been challenged on First Amendment grounds. The court held that the law regulates conduct, not speech, and that the negative consequences produced by data mining outweigh any benefit that results from it. This was an important decision for Massachusetts as it paves the way for the court system to uphold other data mining legislation.
There has been a lot of talk lately from the biotech industry here in Massachusetts about the negative impact of legislation such as data mining on their ability to do business and stay competitive. However, the industry is obscuring the facts. Pharmaceutical reform laws do not restrict companies from doing business; they merely require them to do their business in an ethical way which puts patients first.
Why We Need Action
Although the American Medical Association (AMA) has a program to allow physicians to opt out of the use of their prescribing history for marketing purposes, the program is wholly inadequate to address the real concerns and dangers of data mining for two reasons.
First, less than 25 percent of physicians are even aware of the existence of the program, which renders it ineffective. Further, even if a physician does choose to opt out, the AMA will continue to provide their information to third party purchasers (who then turn around and sell the information to pharmaceutical companies) and it is up to the pharmaceutical companies to self-police the use of this data for marketing purposes.
Second, the AMA program is ineffective and inadequate as it is not available to non-physician prescribers who write more than 70 million prescriptions each year.
Because of the inadequate response by the AMA, states have begun to legislate in this area, in order to protect the public health of their citizens. As Massachusetts is often in the forefront of health care reform, it is critical that the commonwealth step in to protect our citizens from dangerous and expensive pharmaceutical marketing practices.
Data mining is a piece of the larger problem of misleading, expensive and dangerous pharmaceutical marketing practices. In conjunction with the recently passed laws surrounding pharmaceutical reform, a prohibition on data mining will show that Massachusetts is serious about protecting the public from over utilization of brand name drugs and the public health consequences surrounding inappropriate marketing of drugs. It will also reinforce Massachusetts’ place as a leader in pharmaceutical reform.
We must lessen the influence that the pharmaceutical industry has on the prescribing practices of prescribers, and the legislation that I have filed to establish a comprehensive ban on pharmaceutical data mining is a crucial step in that process.
Rep. Stephen Kulik is a state representative for the first district of Franklin County and is a resident of Worthington. He can be reached at Rep.StephenKulik@hou.state.ma.us.
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