In a prior post, “Vermont Marketing Disclosure Reports Move from Fiscal Year to Calendar Year,” we queried whether any state would amend their marketing disclosure laws to allow the federal law to completely preempt the state requirements. While we have not seen any state legislature pass a bill to repeal its disclosure laws and rely solely on the federal laws, a number of state legislators are finally making much needed noise in opposition of their state-specific disclosure and gift ban laws. Specifically, in Massachusetts, House Speaker Robert DeLeo (D) recently went on record to voice his opposition to Massachusetts ban on gifts and meals from pharmaceutical companies to doctors. In Representative DeLeo’s opinion, the gift and meal ban is a “hindrance” to job creation and deters companies from doing business in Massachusetts. Additionally, in Maine, Republican legislators presented Maine bill LD 719 to repeal certain state disclosure requirements, which the Governor of Maine signed into law today. Maine’s bill LD 719 goes into effect September 28, 2011 and will repeal specific sections of Maine’s Revised Statutes that currently require manufacturers and labelers of prescription drugs to annually disclose certain expenses related to marketing. LD 719 will also repeal other sections of the Maine’s law that require the disclosure of the average manufacturer price and best price of certain drugs and the disclosure of clinical trials on prescription drugs on a publicly accessible website. The sponsor of this bill, Representative Meredith Strang Burgess, stated that “the general theme this session is to stop making Maine more difficult than other states [for business]. We certainly want to make sure we’re being smart [about regulation], but at the same time not going too far and letting the free market prevail.”
Are these marketing disclosure laws and/or gift and meal bans putting these states at a competitive disadvantage? What if life science companies choose to limit (or even stop) their sales and marketing activities in the more burdensome states? Detailing and related sales activities, which often occur in conjunction with a meal, provide healthcare professionals with valuable information regarding new medications and can serve to improve patient care. By discouraging or forbidding these activities, the general public may not have the most current information regarding advances in treatment options. While I agree that the government should regulate and discourage bad behavior, it appears that some state regulations may have crossed the line from smart, effective regulation to burdensome, over-regulation.
The common theme of legislators’ oppositions to disclosure and gift ban laws is job creation. Other legislators that remain steadfast in their support of such laws continue to defend those laws as being important and effective in driving down drug costs. Will this position be weakened once the data disclosed to the federal government is made available to all state governments? How will states justify more stringent state-specific requirements when other states are gaining the benefit of the federal disclosure data without the burden and cost of having a state-specific disclosure law?