LD 144O - “An act to prohibit inappropriate software advertising of prescription drugs”

Testimony of Rep. Sharon Treat

May 8, 2007

Joint Standing Committee on Health & Human Services

Senator Brannigan, Representative Perry, and members of the Health & Human Services Committee. I am Sharon Treat, and I represent House District 79, Farmingdale, Hallowell and West Gardiner. I am testifying today in support of my legislation LD 144O - “An act to prohibit inappropriate software advertising of prescription drugs.”

What concern does the bill address? As Maine joins other states and the federal government in a major push to shift to electronic health records, issues around electronic prescribing are starting to emerge. Among these issues is the confidentiality of patient and prescriber data, which this committee has started to address. A second concern, which LD 1440 focuses on, is the potential influence of pharmaceutical advertising and other inducements embedded in the prescribing software or equipment itself, which may be used to influence physician and other medical prescribers.

This is not advertising in a magazine, on television, on a website visited by the provider, or even word of mouth persuasion offered by a pharmaceutical detailer in a doctor’s office. Rather, it is advertising or messaging embedded in software used to prescribe, potentially as intrusive and blatant as an instant message or pop-up ad recommending an alternative treatment to that being prescribed by the provider.

Electronic prescribing software is expensive. One way to pay for the cost and encourage prescribers to use these new systems is to subsidize the cost through advertising. Not all such software has these ads; for example pharmacy-owned Sure Scripts states in its “FAQs”:

When I prescribe electronically, will the system try to influence my decisions? No. Because SureScripts is pharmacy owned, one of its founding principles is to ensure that there is no commercial messaging allowed on the Pharmacy Health Information Exchange, operated by SureScripts. Electronic prescribing applications that are connected to this network signifies that your vendor completed a certification process to ensure that there is no commercial messaging at the point of care. SureScripts also protects your choice of therapy and your patient's choice of pharmacy. All prescribing applications certified to connect to the Pharmacy Health Information Exchange, operated by SureScripts, are required to abide by these rules, and only physician technology companies that agree with this philosophy are allowed to connect.

Other companies do not make this claim however, and the experience in Australia, which has been using electronic prescribing much more widely than the U.S., may be instructive. I have attached to this testimony two Australian medical journal articles about pharmaceutical advertisements in prescribing software. A July 2005 study found advertising insinuated throughout the electronic prescribing program “Medical Doctor” which has the dominant share of the marketplace and is the only program in Australia that has advertisements. The ads showed up in 24 different clinical functions of the program -- everywhere from program installation to recording patient blood pressure, to pain assessment, to the care plan and selecting drugs for prescribing. The study authors concluded that

“Pharmaceutical promotion in prescribing software, occurring at the time of physician-patient decisionmaking, may be more powerful that promotion in medical journals, gimmicks and giveaways.”

This concern was compounded by the many violations of the medical ethics code the authors found when the content and format of the advertising itself was examined. Because of the public health concerns, they recommended that such promotional activities be banned from prescribing software. I have attached this study and a follow up report published in 2006.

Action in this country. States in this country are beginning to address this issue; at least four besides Maine have either enacted or pending legislation on this subject.

• In 2006, the State of Florida enacted legislation, Chapter 2006-271, SB 1408, which bans pop up ads, instant messaging and other means, including financial incentives, intended to influence the prescribing decision of the prescribing practitioner at the point of care (attached). LD 1440 is modeled on this law, which so far as I know has not been challenged in the courts on either Constitutional Commerce Clause or free speech grounds (or on any other basis), and which took effect July 1, 2006.
  
• The Vermont House and Senate each passed a ban similar to that in LD 1440 as part of S.115 (attached). This bill is currently in a conference committee; the electronic advertising section was identical in the bills passed in each chamber.
  
• New Hampshire also has a similar provision in a more comprehensive electronic prescribing bill, HB 134. This legislation has passed the House and is currently in committee in the Senate.
  
• In South Carolina, Section 44 117 380(A) of S. 528, currently in committee, addresses the issue of financial inducements and electronic prescribing. While it does not address advertising per se, it prohibits a pharmacist or pharmacy from providing a computer modem or other similar electronic device to a prescriber, health care facility, or any other third party entity, or any combination of these, with the intent to provide an incentive to refer patients to that pharmacist or pharmacy.

Why act now? Let’s nip this practice in the bud, before we face widespread problems when electronic prescribing becomes the norm. Such advertising and messaging is unnecessary, invasive, and inappropriate in the context of electronic prescribing. I ask your support of LD1440 which will address this issue before it gets out of hand.