Aug. 29, 2005

Public Citizen Files Suit to Obtain Information Gathered Under Vermont’s Pharmaceutical Marketing Disclosure Law

At Drug Makers’ Request, Vermont Attorney General Rubber-Stamps as “Trade Secrets” Documents Containing Doctor Gift Information

WASHINGTON, D.C. – A Vermont court should order the state’s attorney general to allow public access to all records disclosed by pharmaceutical companies under the Vermont Pharmaceutical Marketing Act, a law intended to allow the public to learn the amount of money doctors receive from drug manufacturers, Public Citizen said in a lawsuit filed Friday against the Vermont attorney general. The lawsuit, which calls for the release of records being withheld at the request of drug companies, was filed in Vermont’s Washington County Superior Court.

Vermont’s Pharmaceutical Marketing Act was enacted three years ago to shed light on the practice of pharmaceutical companies giving promotional gifts and payments to physicians. The law calls for the drug companies to report the value, nature and purpose of any gift, fee, payment, subsidy or other economic benefit over $25 given to doctors, pharmacists, hospitals or any other person authorized to prescribe or dispense prescription drugs.

The reports of gifts are made to the state attorney general’s office, which does not maintain a publicly accessible database. The office issues only an annual overview stating the total dollar amount reported, not which doctors accepted what gifts. Further analysis of this database could inform the ongoing debate about the propriety of doctors accepting such gifts.

Accordingly, in December 2004, Public Citizen’s Health Research Group sent the attorney general’s office a request under the state’s open records law seeking all the pharmaceutical company reports from the attorney general’s office for July 1, 2002-June 30, 2003.

In January and May 2005, the attorney general provided complete records, including doctors’ names, from many drug companies, but refused to release any information from pharmaceutical companies that had designated their material “trade secret.” The withheld information came disproportionately from many of the largest drug companies, reducing the usefulness of any analysis of the data provided.

Public Citizen appealed the denial in June 2005, claiming that the sought-after information was not secret because doctors and people outside the company already knew the information and competitors were aware of the practice of gift-giving in pharmaceutical marketing. Moreover, many pharmaceutical companies had willingly disclosed the data to the state, knowing that it could be made public. The attorney general denied the appeal, prompting the lawsuit filed Friday.

“The role of the attorney general is to provide citizens with information they are entitled to under the public records law, not to rubber-stamp the determination of drug companies that their information should not be released,” said Adina Rosenbaum, the Public Citizen attorney working on the case.

“An increasing body of scientific research shows the effectiveness of these improper attempts to influence doctors’ prescribing,” said Peter Lurie, deputy director of Public Citizen’s Health Research Group.   “Patients have a right to know the extent of these efforts, since they can affect which, if any, drugs they will be prescribed.”

Maine, Minnesota and the District of Columbia have similar laws regarding gift disclosure.

Local counsel on the case is Ron Fox of Biggam, Fox & Skinner, a Montpelier law firm.

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