Imagine being charged with a crime, but an imaginary friend takes the rap for you.
That is essentially what happened when Pfizer, the world’s largest pharmaceutical company, was caught illegally marketing Bextra, a painkiller that was taken off the market in 2005 because of safety concerns.
When the criminal case was announced last fall, federal officials touted their prosecution as a model for tough, effective enforcement. “It sends a clear message” to the pharmaceutical industry, said Kevin Perkins, assistant director of the FBI’s Criminal Investigative Division.
But beyond the fanfare, a CNN Special Investigation found another story, one that officials downplayed when they declared victory. It’s a story about the power major pharmaceutical companies have even when they break the laws intended to protect patients…
Pfizer said in court that “the company’s intent was pure”: to foster a legal exchange of scientific information among doctors. But an internal marketing plan called for training physicians “to serve as public relations spokespeople.”
According to Lewis Morris, chief counsel to the inspector general at the U.S. Department of Health and Human Services, “They pushed the envelope so far past any reasonable interpretation of the law that it’s simply outrageous…”
Daylife/AP Photo used by permission
By April 2005, when Bextra was taken off the market, more than half of its $1.7 billion in profits had come from prescriptions written for uses the FDA had rejected.
But when it came to prosecuting Pfizer for its fraudulent marketing, the pharmaceutical giant had a trump card: Just as the giant banks on Wall Street were deemed too big to fail, Pfizer was considered too big to nail.
Why? Because any company convicted of a major health care fraud is automatically excluded from Medicare and Medicaid. Convicting Pfizer on Bextra would prevent the company from billing federal health programs for any of its products. It would be a corporate death sentence.
Prosecutors said that excluding Pfizer would most likely lead to Pfizer’s collapse, with collateral consequences: disrupting the flow of Pfizer products to Medicare and Medicaid recipients, causing the loss of jobs including those of Pfizer employees who were not involved in the fraud, and causing significant losses for Pfizer shareholders.
RTFA for the details on how all of this was accomplished.
It starts with the stupid law that may have been useful when the marketplace was grounded more in competition than lobbying, fraud and payoffs. But, after a decade or so of the Republican Contract on America, competition and authoritative testing by the FDA has gone away.
The reasoning for the paper culprit paying the fine is as sound as it is circuitous. It’s also just another page in the book of illustrations of corporate control of Congress. Just another reason to consider throwing out the individuals who acceded to corruption when the “other side” was in power – as excising the remaining cancers in the body politic who’ve been festering since the era of Newt Gingrich.