Joshua Weiss · November 2010
79 GEO. WASH. L. REV. 260 (2010)
Each year, physicians in the United States write more than three billion prescriptions, or about twelve prescriptions per American. In 2009 alone, the United States spent some $300 billion on prescription drugs. Similarly, the medical device market accounts for around $200 billion in annual sales. With so much money at stake, it should come as no surprise that drug and device companies invest massive sums in aggressive marketing.
Estimates vary, but the pharmaceutical and medical device industries spend around $30 billion per year on marketing efforts designed to maximize market share, and doctors are one of their main targets. On average, the drug and medical device industries spend over $20,000 per doctor each year on marketing efforts that include gifts, meals, travel, consultancy fees, and continuing medical education programs. The reach of medical marketing has grown so broad that one recent survey reported that ninety-four percent of physicians have received some form of benefit or payment from the drug and device industries. For example, on any given day, pharmaceutical companies pay to deliver lunch to the twenty or so doctors and employees of Nassau Queens Pulmonary Associates in New York. Moreover, the practice of paying for meals is alarmingly widespread. Indeed, “some [doctors’] offices get breakfast and lunch every day” courtesy of drug and device companies.
Pharmaceutical outreach, however, is not limited to bagels and brunch. Drug companies flood doctors’ offices with branded trinkets—everything from paper and pens to mugs and mousepads—in an effort to push the latest prescription medicines. Under an educational guise, paid and highly trained sales representatives encourage physicians to prescribe more products by bringing food and freebies to doctors’ offices, a practice known as “detailing.” And drug companies know their marketing works. One former marketing representative called free meals an “incredibly effective” tool for boosting drug sales. The true cost of medical marketing, however, is ultimately paid by taxpayers and private insurance customers who foot the bill for industry-induced overspending.
To rein in overspending caused by medical marketing, Congress should pass stringent legislation banning the provision of gifts and free meals. This Note proposes the Medical Marketing Act for Congress’s consideration and defends it against legal attack. A comprehensive ban on the drug and device industries’ most troublesome marketing activities would lower spending on prescription drugs and medical devices by substantially reducing doctors’ tendencies to prescribe more expensive and unnecessary branded drugs and medical devices.
This Note begins, in Part I, by describing how medical marketing impacts doctors’ decisionmaking and how this shift affects drug and device spending. Part II examines the common shortcomings of the many medical marketing proposals put forth by industry organizations, state legislatures, and Congress. Part III responds to the most likely challenge to the Medical Marketing Act—the accusation that restrictions on medical marketing impermissibly curtail commercial speech in violation of the First Amendment. Finally, Part IV proposes the Medical Marketing Act for Congress’s consideration.
