Starting Jan. 1, the pharmaceutical industry has agreed to a voluntary moratorium on the kind of branded goodies — Viagra pens, Zoloft soap dispensers, Lipitor mugs — that were meant to foster good will and, some would say, encourage doctors to prescribe more of the drugs.
No longer will Merck furnish doctors with purplish adhesive bandages advertising Gardasil, a vaccine against the human papillomavirus. Banished, too, are black T-shirts from Allergan adorned with rhinestones that spell out B-O-T-O-X. So are pens advertising the Sepracor sleep drug Lunesta, in whose barrel floats the brand’s mascot, a somnolent moth.
Some skeptics deride the voluntary ban as a superficial measure that does nothing to curb the far larger amounts drug companies spend each year on various other efforts to influence physicians. But proponents welcome it as a step toward ending the barrage of drug brands and logos that surround, and may subliminally influence, doctors and patients.
It’s arguable whether a regulated profession like doctors themselves might benefit from such a code. After all, an essential element of all professional codes are various measures to avoid conflicts of interests, the appearance of impropriety, and the elevation of profit above client welfare. And in matters affecting the organization as a whole, some cost-cutting measures would pass muster. For example, it would not invite antitrust scrutiny if the ABA or the AMA said: hey guys, let’s do our convention in Branson, Missouri this year; things got kind of out of control in Vegas. It’s quite another if Branson, Vegas, and the various sellers of services in competition with one another got together to decide what the price of the rooms and food should be and whether discount cards would be offered. The latter would be a classic price-fixing conspiracy (or quality limitation conspiracy), and such acts have been per se prohibited by antitrust laws since the beginning. Even the Chicago School’s insights on such wide-ranging matters as the value of resale price maintenance and tying arrangements do not extend to the defense of anti-competitive conspiracies to control prices or product quality or both.
Of course, for liberals, pharmaceutical companies are the bad guys in the world of medicine, and it’s perceived that the huge marketing campaigns they undertake are simply wasted resources. These things are only a waste, of course, if various pressures to increase product quality, product variety, and lower prices are a bad thing. And they certainly are a bad thing if you are a pharmaceutical company trying to increase profits. That said, it’s doubtful an Obama DOJ would crack down on this sort of thing. The goal of his various health measures is not to lower prices, raise medical care quality, and increase competition, but to control everything through competition managed by the federal government for various goals that do not necessarily have much economic value, such as making medical practice less pleasant (and less rich in information flow) by cutting down on drug company junkets for doctors.
There is simply no way this measure should survive antitrust scrutiny, and the organization in charge–the Pharmaceutical Research and Manufacturers Association of America–has no inherent shield from liability because it is an industry organization ostensibly concerned with “professionalism” and other matters. See generally American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556 (1982).
The utter brazenness of this measure is breathtaking.