Yves here. One of our pet issues at Naked Capitalism is keeping close tabs on how corporations and government officials seek to minimize bad conduct by coming up with innocuous-seeming labels for it. If you believe in the importance of Confucius’ saying, “The beginning of wisdom is to call things by their proper name,” then you’ll appreciate how successfully applying improper names is a very successful strategy for agnotology, which Wikipedia defines as “culturally induced ignorance or doubt”.
This post gives an important example from the health care arena, of how the anodyne term “misbranding” covers conduct which can, and too often does, lead to higher patient death rates. And it is part of a much bigger societal pattern of minimizing abusive and potentially criminal conduct when perpetrated by executives and members of other protected classes.
By Roy Poses, MD, Clinical Associate Professor of Medicine at Brown University, and the President of FIRM – the Foundation for Integrity and Responsibility in Medicine. Cross posted from the http://hcrenewal.blogspot.com/2015/08/praluent-next-expensive-game-changer.html“>Health Care Renewal website
The Latest Settlement
Biotechnology giant Amgen has just reached another settlement of allegations that it unfairly, deceptively or misleadingly marketed its drug. Per the Los Angeles Times,
Amgen Inc. has agreed to pay $71 million to settle allegations by 48 state attorneys general that it improperly marketed two of its blockbuster drugs.
The states, including California, alleged that Amgen violated consumer protection laws by promoting the use of its anemia drug Aranesp for longer periods than the Food and Drug Administration had approved and by encouraging its use to treat anemia caused by cancer without FDA approval.
In addition, Amgen was accused of promoting its drug Enbrel as a treatment for mild plaque psoriasis even though it was approved only for severe plaque psoriasis, and for overstating the length of time that Enbrel effectively treats the disease.
This is the second settlement Amgen has made for improper marketing of Aranesp.
Three years ago, Amgen pleaded guilty to a single misdemeanor in federal court in New York for improperly marketing Aranesp. The drugmaker agreed to pay $150 million in criminal penalties and $612 million to resolve broader civil lawsuits, including allegations that Medicare, Medicaid and other government insurance programs were improperly billed.
At the time, federal prosecutors called the settlement ‘the single largest criminal and civil False Claims Act settlement involving a biotechnology company in U.S. history.’
Although doctors can prescribe medications for off-label uses, drug companies are banned from promoting uses that aren’t approved by the FDA, which has been at odds with some drugmakers over the issue.
This settlement seems to be just the latest in a very long procession of legal settlements of allegations of apparent misbehavior by large health care organizations. We have previously discussed many such settlements, how they serve as markers of ethical lapses by leaders of large organizations, and also how the failure of most of these settlements to provide meaningful penalties to those who presided over, directed, or implemented the bad behavior allows continuing impunity and fails to deter future bad behavior. Many large organizations have made multiple such settlements in recent years, but have these settlements seem to have not promoted honest, transparent, accountable health care.
Yet continuing government efforts to provide even these weak challenges to continuing bad behavior now appear under threat.
Is Misbranding a Crime?
The fundamental allegations in the original large Aranesp settlement were of misbranding (although the settlements with state government just announced were of violations of state laws prohibiting, as in the case of Connecticut, “unfair, deceptive or misleading” marketing practices.) Marketing a drug or device for uses other than those approved by the US Food and Drug Administration (FDA) may be called “misbranding.”
Whether misbranding should be considered a crime has lately become controversial. Recently, an appeals court agreed with the notion that such marketing is constitutionally protected speech, as long as it is “truthful.” (See discussion by Shannon Brownlee on the Lown Institute blog, and the NY Times news article.) I am not a lawyer, so I will try not to deal with this constitutional argument at this time. But most of the public discussion has focused on the narrow issue of whether misbranding is in fact protected free speech.
However, the case of the ‘misbranding allegations agains Amgen suggest other issues worthy of consideration.
Promoting a Not Merely Ineffective, but Dangerous Drug
As we discussed here in 2012, Amgen pleaded guilty to one count of illegally marketing Aranesp, and agreed to pay a penalty of $762 million. As we noted, the misbranding in this case was promotion of Aranesp for patients with cancer who were not receiving chemotherapy. However, a growing collection of evidence suggested that epoetin drugs, a class in which Aranesp resides, increase the death rate in patients with various kinds of cancer. On the other hand, Aranesp was never meant as a possible cure for cancer. At best, its benefit is improvement of anemia, which might, just might improve how some patients feel in the short-term. So it appears Amgen was promoting a dangerous drug without any evidence that the drug provided benefits that balanced the danger. This appears very bad for patients. The misbranding here was not some technical violation, but likely a deceptive effort that could have hurt patients, while profiting Amgen and its top executives. The ethics here look much worse than the single guilty plea suggested.
Misbranding just refers to promoting a drug or device for uses that the FDA did not approve. Some cases of misbranding could cause little more than inconvenience and added expense, but others could result in serious harm to patients. Treating them all as misbranding removes important distinctions.
Allegations of Kickbacks
Furthermore, as discussed here in 2013, the 2012 settlement was not just about misbranding. It was about kickbacks, that is bribes given to doctors by Amgen to induce them to prescribe a dangerous medication. The settlement was arranged that Amgen did not admit to the alleged kicbkbacks. But neither did it deny them, and the company apparently thought it was worth $762 million to avoid further dealing with these accusations, which nonetheless hang in the air. So the ethics here now look even worse, invovling promoting a dangerous drug allegedly with bribery.
Furthermore, after news of the original Aranesp settlement came out, other stories of other settlements by Amgen appeared. As we noted here, in 2013, Amgen settled allegations that it also paid kickbacks to Omnicare and PharMerica to promote Amgen use in nursing homes and hospital. It also settled charges that it inflated pricing data to obtain larger payments from Medicaid in multiple states for a variety of its drugs, including Aranesp. Later in 2013, as we noted here, Amgen settled yet more charges that it gave kickbacks to doctors to promote one of its products, this time anti-cancer drug Xgeva.
Organizations accused of misbranding often are also accused of much worse conduct, yet very often, their cases are settled with the emphasis on the misbranding, leaving more serious allegations neither proven nor denied. Focusing on misbranding may distract from more serious ethical, moral and legal violations.
In the case of Amgen, the large 2012 settlement for misbranding resulted in the only guilty plea made and the largest fine paid by the company. From my informal perusal of legal settlements made by drug, biotechnology and device companies, misbranding seems to be one of the more frequent allegations, and often the only one resulting in admissions of guilt. It may be that it is easier to prove misbranding than other charges, and companies may admit to misbranding in settlements because the charge is not well understood by the general public and hence may carry less of a stigma than other charges, for example, kickbacks or fraud.
Yet as noted above, while misbranding seems to connote a mere technical violation, in health care misbranding can mean patients hurt by dangerous treatments that did them little if any good. Furthermore, companies that settle allegations of or even admit to misbranding often have been charged with lots of other bad behavior, but settlements are often set up so none of these other allegations is ever confirmed or refuted. So settlements that focus on misbranding again may nullify questions about worse ethical problems.
Now whether misbranding is itself really a transgression seems to a legal question. But perhaps the legal challenges to misbranding as a crime ought to evoke more than just a narrow defense of the legal concept. Of course, declaring misbranding unconstitutional could result in even weaker enforcement actions against large and powerful health care corporations, However, maybe the inherent weakness of misbranding charges ought to inspire some rethinking of what bad behavior in health care really deserves attention.
Should not aggressive marketing of a drug as tremendously effective and safe in situations in which the drug is either minimally or not at all effective (especially in terms of improving patient-centered outcomes) or not very safe be considered possible fraud, and prosecuted as such? Should not alleged kickbacks and bribes given to health professionals and care giving organizations be prosecuted, rather than treated as civil disputes and settled? Should not the people who actually appeared to have committed fraud, or given bribes be prosecuted, rather than just letting their employers escape with civil monetary penalties? Should not the leaders of big organizations on whose watches fraud and bribery allegedly occurred be charged as responsible corporate officers (look here )?
If civil authorities were willing to stop regarding big health care organizations and their leaders as “too big to jail,” maybe less mischief would be going on in health care. And maybe that would lead to better care for patients and better health for the public.