This Motley Fool series examines things that just aren't right in the world of finance and investing. Here's what's got us riled up this week. If something's bugging you, too -- and we suspect it is -- go ahead and unload in the comments section below.
Today's subject: Doctors are allowed to prescribe a drug for anything they think will help a patient. Roche's cancer drug Avastin is often used to treat macular degeneration because the same properties that help it slow tumor growth -- inhibiting blood vessel growth -- also help patients with the eye disease.
Drug companies, on the other hand, aren't allowed to market drugs "off label." The Food and Drug Administration approves drugs for certain indications at certain doses, which it puts on the label. Companies are restricted to marketing for those specific diseases and aren't allowed to suggest that doctors or patients use the drug for off-label indications.
Except sometimes they do.
But that's old news. Pfizer took the charge at the beginning of last year and announced the completed settlement with the Department of Justice a few months later.
No, what's got my jester cap ruffled is a CNN report that it wasn't actually Pfizer that pleaded guilty to the illegal marketing. Instead, it was a subsidiary of a subsidiary of a subsidiary of a subsidiary of Pfizer. As CNN puts it, the great-great-grandson of the parent company.
Why you should be indignant: The sub-sub-sub-subsidiary was specifically created to plead to an earlier kickback case against a company Pfizer had acquired. Now the shell company has pleaded guilty to a charge of off-label marketing. As far as I can tell, the subsidiary doesn't do anything useful, like, I don't know, sell drugs. Its whole raison d'etre is to accept responsibility for illegal actions. How convenient.
Why not just have the parent company cop the plea? Because companies that are found guilty of major health-care fraud are excluded from doing business with Medicare and Medicaid. If Pfizer, rather than its rap-taking subsidiary, pleaded guilty, then all Pfizer subsidiaries would be banned from selling drugs to government programs.
Prosecutors couldn't let that happen. Patients in government health programs need access to drugs that Pfizer sells. Pfizer's large size also came into play. Losing the government's business might result in the collapse of Pfizer and the loss of jobs for many individuals who had nothing to do with the off-label marketing.
What now: Unfortunately, prosecutors are right; the way it is now, there was no way that Pfizer could be found guilty. Removing Pfizer from government programs would have been as unhealthy for Americans as letting JPMorgan Chase
But what's the point in having a law to punish offenders if it isn't enforced for major drug companies? Would a smaller drug company that doesn't have as many drugs on the market be afforded the same luxury treatment? (Maybe it could use just a sub-subsidiary.)
There have to be consequences for the illegal actions of drug companies. The punishment has to be big enough that it can't just be shrugged off as the cost of doing business.
Rather than banning companies from selling to Medicare and Medicaid altogether, why not modify the law? What if they had to sell their drugs to those programs at cost for a certain number of years, maybe equal to the length of time the illegal marketing lasted, or even twice as long? This longer-term loss of profits, rather than a one-time charge, might be a better reminder of what can happen if a company's employees decide they're above the law.
My proposal may not sit well with investors, who would be hurt by the loss of profits. Unfortunately, that's just one of the risks that investors take when investing in a company. Keep your portfolio diversified because employees have derailed companies in the past, and I'm sure they'll do it again.
Fool contributor Brian Orelli, Ph.D., doesn't own shares of any company mentioned in this article. Johnson & Johnson is an Income Investor selection, and Motley Fool Options recommended buying calls on the stock. The Fool has a disclosure policy.