I might have been persuaded by Justice Stephen Breyer’s dissent on behalf of drug company sales representatives in Christopher v. SmithKline until I got to his reliance on the ethics code of the Pharmaceutical Research and Manufacturers of America (PhRMA). [The majority rejected a claim by sales representatives (detailers) that they were entitled to overtime pay under the Fair Labor Standards Act because they were not really engaged in sales.]
As Breyer observed, the PhRMA ethics code “refers to detailers as ‘delivering accurate, up-to-date information to healthcare professionals.'” The code also “explains why a detailer should not (hence likely does not) see himself as seeking primarily to obtain a promise to prescribe a particular drug, as opposed to providing information so that the doctor will keep the drug in mind with an eye toward using it when appropriate” (emphasis added).
Perhaps Breyer is correct that drug company detailers see themselves as educators, rather than salespersons, in accordance with the PhRMA ethics code. But it’s difficult to square that view with the reality of the detailers’ compensation. As the majority pointed out, detailers receive substantial incentive pay (more than 30 percent of gross pay for one of the plaintiffs) that is based on sales volume of the detailers’ assigned drugs in their sales territory. They are not given bonus pay based on the extent to which doctors in their sales territory are knowledgeable about their assigned drugs.
Breyer’s dissent is also difficult to square with his dissent in Sorrell v. IMS Health last year. In supporting restrictions on the use of patient prescription data by detailers, Breyer characterized the activities of detailers as “sales discussions.” He also defended the restrictions on the ground that they would counter the tendency of the data to “help sell more of a particular manufacturer’s particular drugs . . . by diverting attention from scientific research about a drug’s safety and effectiveness.”
When I worked at the American Medical Association and helped develop its ethics guidelines on the relationship between physicians and drug companies, I remember meeting a detailer who was responsible for promoting just one drug. You can bet he was consumed with generating high sales of the drug.
[cross-posted at HealthLawProf]