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Legislative Memo

Lev Ginsburg
Director of Government Afairs
T 518.465.7511 x207
www.bcnys.org

BILL:

S.6015 Rules (Governor's Program Bill #58)

Support

SUBJECT:

Marketing Prohibitions on Pharmaceutical & Medical Device Manufacturers; Marketing Disclosure Provisions

 

DATE:

July 13, 2009

 

The Business Council opposes this legislation, which adds new sections to the Public Health Law to ban payments or gifts from pharmaceutical and medical device manufacturers to physicians and other prescribers in excess of $50 per year and to require disclosure of financial relationships of presenters of continuing medical education with these manufacturers.  This bill would have a significant, adverse impact on the ability of these manufacturers to market their goods and services, as well as on clinical research in New York.  Furthermore, manufacturers are already subject to federal laws and guidance, supplemented by recently updated industry standards, in these matters.

The state's pharmaceutical and biotechnology industry is a vital part of our manufacturing sector and the state's overall economy.  The proposed legislation will negatively impact New York's economy by impeding the growth of the pharma/biotech industry.  It will undermine the state's ability to attract and retain pharma/biotech industry.

Marketing Interference

This bill imposes requirements on these companies to which no other industry in New York is subject.  It segregates one sector of the economy, and subjects it to rules, disclosure requirements and penalties for practices common among nearly all sectors of business - the legitimate marketing of goods and services.  The ban would hinder engagement between pharmaceutical representatives and physicians and other medical professionals and a process by which prescribers are educated about these products.

The bill constitutes marketing interference in a free-market system through the imposition of government regulation of the right of a business or manufacturer to develop a product, bring it to market, promote it, and educate and inform a consumer about it, including all known benefits and risks.  In this instance, better healthcare - through a more informed prescriber – is provided by health care providers having access to this valuable information.

In January 2009, the pharmaceutical industry's trade association adopted enhanced voluntary guidelines, which some manufacturers supplement with their own, even more stringent guidelines that are intended to limit payments and gifts.  In addition, the U.S. Health and Human Services' Office of the Inspector General has issued marketing guidelines to ensure that reciprocal arrangements are prohibited between manufacturers and health professionals.  Furthermore, the U.S. Food and Drug Administration regulates all information and promotional materials distributed about a prescription drug.

New York's Innovation Economy: Promote, Don't Punish

New York's pharma/biotech industry and their products are an asset, and not a liability, for our health-care system and our economy.  It is a major statewide industry that spends billions on research and development, employs thousands in high-paying jobs and generates hundreds of millions of dollars in tax revenue and in rebates to offset the cost of Medicaid and other state programs.

For example, the pharma/biotech industry:

Reducing Healthcare Costs, Impacting Prescribing Habits?
Not By Marketing Interference

The Business Council's members have identified employee healthcare – the cost of healthcare and how to pay for it - as their No. 1 cost-of-doing-business concern.  Yet, interfering with the legitimate marketing of goods and services by essentially banning the marketing of pharmaceuticals is not the solution for reducing the cost of healthcare in general, or prescription drug spending, in particular.

Rather, effective and innovative initiatives such as chronic care management programs, a point-of-care prescription information program, appropriate use of generics and electronic prescribing for Medicaid providers should be pursued.

In summary, New York should work to promote a legislative and regulatory environment that fosters innovation and encourages companies that develop state of the art medicines to do business in this state.  New York should reject this and other proposals that would diminish the future of the biopharmaceutical industry in New York State and negatively impact the state's economy by impeding job growth, stifling innovation, and discouraging investment in the state's pharm/biotech sector.  For these reasons, we respectfully urge the rejection of these proposals.