Drug Store Cowboys

[Guest guest]

http://www.alternet.org/story/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.