Prying Eyes at the Pharmacy

[Guest guest]

Prying Eyes at the Pharmacy

 

DRUG STORE COWBOYS

Dan Frosch, AlterNet

Pharmacies and drug companies have come up with a novel way

to make more money -- use our medical records to

pitch us more drugs.

http://www.alternet.org/drugreporter/20512/

 

Drug Store Cowboys

By Dan Frosch, AlterNet. Posted November 16, 2004.

 

Pharmacies and drug companies have come up with a novel way to make

more money – use our medical records to pitch us more drugs.

 

 

A pharmaceutical company gets sued for bribing doctors to promote a

particular drug. An HIV-positive New Yorker sues a drug store chain for

buying and entering his medical records in a database without his consent.

Two companies get sued for sending out unsolicited free samples of

prescription drugs like Prozac. And on and on.

 

Manufacturing legal drugs is a growth industry and the latest twist in the

multi-billion dollar drug-pushing game is that your local pharmacy may be

turning into a marketing agency for the big drug companies.

 

The Privacy Rights Clearinghouse (PRC), a consumer advocacy group, filed a

lawsuit in September against supermarket giant Albertsons in California

Superior Court, for allegedly selling the private prescription drug information

of its customers to pharmaceutical companies. PRC also named 17

pharmaceutical heavyweights, like AstraZeneca, Eli Lilly and GlaxoSmithKline,

as co-defendants, claiming that the companies use the information to

promote their drugs through unsolicited phone calls and letters.

 

According to PRC, the drug companies have been paying Albertsons between

$3.00 and $4.50 for every promotional letter written and between $12.00 and

$15.00 for every phone call made to unwitting customers. Albertsons, the

group maintains, stands to make millions in the process. PRC says both

Albertsons and the drug companies are breaking California law because

customers are never given the option of signing up to receive the calls or

letters as mandated by the state's privacy regulations.

 

" What Albertsons is doing interferes with the patient-physician relationship

and it visits terrible harm on people who rely on prescription drug notices and

don't realize that they're being paid for by drug companies, " says Jeffrey

Krinsk, an attorney for PRC. " Perhaps most pernicious is the potential harm of

third parties learning the existence of an underlying condition if the mail is

mistakenly sent to the wrong address. "

 

The drug companies footing the bill are equally culpable, adds Beth Givens,

director of PRC. Though the actual letters and phone calls may come from

Albertsons and appear to inform patients of the benefits of a particular drug

or remind them to refill a prescription, the drug companies are clearly

involved. A form letter and a training phone call transcript from Albertsons,

provided by PRC, include clauses stating that the letter or phone call was

" provided with financial support " or " sponsored by " a particular drug

company, but that no information would be shared.

 

That, says Givens, is proof enough that information has indeed been

exchanged between Albertsons and the drug companies, especially given the

potential money both parties can make in the process. Further, Givens

alleges that the refill reminders Albertsons sends on behalf of the drug

companies are sometimes to customers whose doctors have not actually

authorized a refill – a frightening charge.

 

Says Givens: " Albertsons wouldn't have any drug marketing program unless

willing pharmaceutical companies signed on the dotted line. "

 

Indeed, it's the ostensibly cozy relationship between pharmacies and drug

companies that's raising eyebrows in this particular case. Prescription drug

costs have risen sharply over the past decade – up an average of 7.3 percent

annually from 1992 to 2002, according to the Kaiser Family Foundation, a

non-profit health research organization. During that same time, the

foundation reports, the number of prescription drugs purchased by Americans

exploded by 74 percent. Subsequently, pharmaceutical companies have

become the beneficiaries of a $400 billion a year business – more than

enough incentive to keep their marketing machines running full steam.

 

Drug companies spend billons each year promoting their wares, in the form of

television and print ads, as well as giveaways to physicians. A 2001 lawsuit

against TAP Pharmaceuticals for bribing doctors to promote Livapro, a

prostate cancer drug, has led to increased scrutiny, but the drug companies

have invariably refined their techniques. The alleged backdoor scheme

highlighted in the PRC suit seems to indicate a more nuanced marketing

approach.

 

" Albertsons is acting as a vehicle for the drug companies, " says Meredith

Rosenthal, assistant professor of health economics and policy at Harvard

University. " There have always been very worrisome ethical implications on

the physician side in terms of pharmaceutical companies paying doctors, and

I think this is similar in that consumers trust their pharmacies to be their

unbiased advocate. "

 

There is some precedent to what's happening in California. In 2001, two

Massachusetts men, also represented by Jeffrey Krinsk, sued CVS

Pharmacy, Glaxo Wellcome pharmaceuticals and Elensys, a marketing

company, for mailing out promotional drug information based on a patient's

particular condition. CVS agreed to stop the practice.

 

Similar suits have been filed over the past few years against local pharmacies

and drug companies in other states as well. In 2001, an HIV-positive New

York man sued CVS for buying his medical records and allegedly logging

them into a database without his consent after it took over operations of his

local pharmacy. In 2002, the Clearwater, Fla.-based Eckerd pharmacy chain

paid $1 million in legal fines for using the medical information of its

customers

for marketing purposes. That same year in Florida, Walgreens and Eli Lilly

were sued for sending out unsolicited, free samples of prescription drugs like

the anti-depressant Prozac.

 

Lawyers like Krinsk are filing claims state by state because the federal Health

Insurance Portability and Accountability Act (HIPAA) of 1996, while giving

patients control over medical records, doesn't completely protect their

prescription drug information. What's more, many states have privacy laws

which go beyond HIPAA and actually prohibit using medical information for

marketing without first getting consent from the patient. California, as it

happens, passed such a law in 2002.

 

Daniel Solove, a professor at George Washington University law school and

an expert in privacy law, called the letters and phone calls from Albertsons

legally " deceptive " because patients think they're from the pharmacist when

really, it's the drug companies speaking. Solove referred to one letter from

Albertsons which warns customers to renew their prescription of Plavix, a

heart disease medicine, as " scare tactics. "

 

" The letter basically implies that you're at an increased risk for a heart

attack

if you don't keep taking this drug, " he says. Solove adds that if customers

have not given their permission to Albertsons first, then both Albertsons and

the drug companies are in violation of California privacy law. " There are some

big problems with this kind of marketing, " he says.

 

For their part, the pharmacies and the drug companies deny any wrongdoing.

Albertsons spokeswoman Stacia Levenfeld emailed AlterNet a statement

released by the company after the lawsuit was originally filed: " We highly

value and respect the privacy of our pharmacy customers and do not sell, nor

have we ever sold, their private information. We consider the allegations in

this complaint to be false and totally without merit – and we will vigorously

defend ourselves against them. "

 

Albertsons operates 2,000 pharmacies in 37 states, including Osco,

Jewel-Osco and Sav-On Drug Stores.

 

As for the drug companies, AstraZeneca spokeswoman Rachel Bloom says:

" It is our policy not to comment on ongoing litigation. However, in the matter

you are referring to, we will defend ourselves vigorously. "

 

(Incidentally, on Oct. 18, the AFL-CIO and two consumer groups filed suit

against AstraZeneca for misleading patients into switching to a more

expensive ulcer medication through a promotional campaign.)

 

Eli Lilly spokesman Phil Belt also declined to comment directly on the lawsuit.

" We obviously feel very good about our privacy policy, " he said. " We've got a

privacy officer dedicated to making sure systems are in place that respect

patient and customer privacy. "

 

GlaxoSmithKline did not return repeated phone calls from AlterNet.

 

Jeffrey Krinsk says he's considering expanding the lawsuit to include other

drug companies and pharmacies he believes also engage in illegal marketing.

Regardless of the outcome, it's become disturbingly clear that in the

astoundingly lucrative and increasingly cutthroat world of prescription drugs,

people's personal medical information is being bought and sold without their

knowledge.

 

Says Larry Sasich, a pharmacist of 20 years and a research analyst for Public

Citizen, a consumer advocacy group in Washington D.C.: " This is a

reprehensible practice. The fact that you are using confidential medical

information to a very real extent and that you're promoting expensive drugs to

a patient that they might not need ... It's unethical professional behavior. "

 

 

 

Dan Frosch is a New York-based journalist whose work has appeared in the

Los Angeles Times, The Source and the Santa Fe Reporter.