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Did the House of Representatives Think They Could Quietly Vote to Repeal the Gift Ban?

Did the House of Representatives Think They Could Quietly Vote to Repeal the Gift Ban?

April 29, 2011

Did members of the House of Representatives think no one would notice when they vote to repeal a popular law?

The reaction to the House vote to repeal the 2008 law banning most gifts to prescribers from drug and device makers has been fast and furious, and must be causing a lot of after-the-fact discomfort among many members.

Item One: AARP, the largest membership organization in the state, went back to their candidate questionnaire from last year and found out something very interesting. Fourteen state reps who had promised to support the gift ban broke their promise and voted to repeal the law they had pledged to uphold. AARP sent a letter to each of the switch hitters, asking why they went back on their word. This got picked up by the Globe, and the CommonHealth blog, under the title, "AARP Outs Lawmakers Who Broke Pledge On Gift Ban."

Item Two: WBUR's Radio Boston show started reaching out to all the members who reversed their votes from the previous year. Would anyone take their bait and talk? The finally got veteran Rep. James Miceli, (D-Wilmington) to come on their show. He was refreshingly blunt and honest, saying it was the restaurant industry's lobbying effort that made the difference:

We had tremendous lobbying up here at the State House by the restaurant association and some of the other folks who are affected by this. They say they were affected in a very aggressive manner. Business was off tremendously, since we put the prohibition on pharmaceutical companies wining and dining doctors and spending money in that arena.

More pressure will certainly be placed on those who were for the bill before they were against it.

Item three: Of course, that "tremendous lobbying" effort by the restaurant industry was built on completely fraudulent claims, that the law somehow hurts the restaurant industry. A copy of the industry's lobbying missive got picked up by the CommonHealth blog, and we supplied the facts to rebut the claims:

1. Claim: “Restaurants provide an important setting for all types of meetings to take place and shouldn’t be excluded as a venue from hosting educational meetings and presentations.”

Truth: The statement is false, and restaurants are not excluded by law. The law allows “educational meetings” at restaurants, as long as the doctor pays his or her own way. If these sessions are for the benefit of the physicians, why can’t the doctor pay for the meal, and listen to the educational presentation from the drug company? Why do premium payers have to cover the meal?

2. Claim: “The mislabeled ‘gift ban’ has been devastating to restaurants and thousands of middle-class employees.”

Truth: The statement is false. State figures conclusively show that the restaurant industry has been booming. Last year was their best year ever, and so far this year is topping last. Devastating? There’s no evidence of that. In any case, every dollar spent on drug industry marketing on restaurant meals is a dollar added to the cost of health care in America. So why should our health care dollars prop up restaurant meals for well-to-do physicians?

The state meals tax receipts leave no doubt that the restaurant industry is booming in Massachusetts. As we said before, 2010 was their best year ever, and sales for the first 3 months of 2011 are up 4% compared to the comparable time last year.

Item Four: The blogs that cover this issue are having a field day, with lots of sarcasm flowing. Author and national drug expert Dr. Daniel Carlat waxed sympathetic:

Yes, commoners escape workplace demands by going home at 5 or by taking a stroll through a park during lunch. But doctors need raw oysters and wine after a hard day of work—plenty of it, free, and with fawning pharmaceutical reps complimenting them on their knowledge of vintages

Blogger Jim Edwards on the CBS business network titled his comment, Massachusetts Votes to Legalize Drug Company Kickbacks to Doctors. He wrote that the vote "isn’t just about the bizarre way the restaurant industry seems to control healthcare policy in the Bay State. It’s about ending a laudable experiment in transparency, and cloaking the way pharmaceutical companies give money and gifts to doctors in order to boost prescription sales.... The Massachusetts politicians who voted to repeal the gift ban say this is all about helping the state’s catering-services-industrial-complex, but the real benefit will go to companies who want to obscure the way kickbacks lubricate the drug business."

Similar is blogger Billy Rubin, who writes, "Never mind the fact that this sector of the Massachusetts economy appears to be doing reasonably well, with an increase in overall revenue compared to last year, the measure's backers appear to be saying that it's perfectly fine if a payola-style arrangement is in place, as long as the palms continue to be greased and the filet mignon gets served with the Cabernet."

And law professor Kevin Outterson, on the well-read Incidental Economist group blog, called the claim that the law inhibits conventions in Massachusetts as nonsense, explaining how the statute affects only Massachusetts-based physicians, wherever they may be.

We are determined to make sure the Senate has all the facts, and understands the strong public support for keeping the restrictions against the industry marketing tactics, which just add to the cost of our drugs. Stay tuned for more.
-Brian Rosman