Pharma, Free Markets and Free Speech Go Together Like Oysters and Buses


Free market. The term is one of those oxymorons that are self-contradictory in both logic and fact. While its advocates claim that a market economy exalts freedom, skeptical observers note that it often leaves many people free to sleep under bridges, to beg in the streets, and to steal bread. Decades ago economists concluded that since most mass markets devolve into oligopolies, consumers' freedom to choose and to determine prices with their demand exist largely as myths.

As long as the modern pharmaceutical industry has existed, it has sought to loosen government oversight, claiming that the free market daydream will allow better products and lower prices. Businesses have promised such outcomes for more than 150 years, especially those spokesmen who argue, in the words of British historian E.J. Hobsbawm, that black is white, or at least not black, or if it is, then it's no one's fault.

The irony of pharma seeking less government involvement is fairly humorous in a sick sort of way. The industry enjoys its enormous profit margins as a result of entry barriers erected entirely by government. These include patent protection and an occasionally stringent regulatory system. At the same time pharma has regularly demanded that the US federal government should aggressively intervene against foreign countries that try to control the unconscionably high prices of prescription drugs.

More recently pharma has tried to link its self-serving view of a free market with freedom of speech. This effort is clearly inspired by the arguments of Justices Scalia and Roberts that corporations, at the discretion of management, can contribute unlimited amounts of their shareholders' money to political campaigns.

In a case decided by the Supreme Court last week, the plutocratic Bush majority struck down a Vermont law that restricted companies from data mining the prescribing behavior of individual physicians. Pharma companies use this data to target the marketing and selling they do with physicians. Such marketing constitutes protected speech, according to Justice Kennedy, and he believes it's just too bad "if pharmaceutical marketing affects treatment decisions." If "it does so," he wrote in his decision, "[it is] because doctors find it persuasive." By that standard, perhaps Bernie Madoff should not have been prosecuted for telling investors he'd get them terrific returns on their money because, after all, they found his lies persuasive.

Putting its own spin on the legal fiction of corporate rights, pharma will shortly seek to promote its products for unapproved uses, a practice known as off-label marketing, by claiming freedom of speech. Perhaps their goal lies in returning to the freedom enjoyed in the old west, where charlatans in covered wagons extolled snake oil for every known malady.

Here as in many other cases, there is an enormous gulf between the public posture of pharma and the attitudes of most people who work there. Top management and their henchmen in the law department, public affairs and government policy establish the public positions. On the whole these groups are characterized by rigidity, hypocrisy and a single-minded devotion to profits above all else. By contrast most employees, in the labs and elsewhere, are educated people who understand the role of corporations as part of a public-private, mixed economy. Too bad they don't have more of a say in running things.

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