Is a gift ever just a gift?

What Supreme Court justices and hundreds of thousands of physicians have in common

Thanks to the great work of ProPublica and to the surprise of no one who has been following the drift of recent Supreme Court decisions on economic issues, we learned justices Samuel Alito and Clarence Thomas accepted freebies from billionaires. Hedge fund operator Paul Singer and real estate mogul Harlan Crow, both of whom have extensive business interests that would be affected by court decisions, lavished justice Alito with free air travel, vacations, and, in Thomas’ case, in addition to lavish vacations, free private school tuition for a relative and insider access to a real estate deal.

What intrigued me most about the defenses offered by both lawyers is that they were almost identical to the rationales that physicians proffer when dismissing criticism of their accepting drug industry baksheesh.

1. The payments did not require disclosure.

Thomas: “This sort of personal hospitality from close personal friends … was not reportable.”

2. The payments were of little value.

Alito: “He allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska.”

3. The payments had no influence over their decisions.

Thomas: Crow “did not have business before the court.”

Alito: “On no occasion have we discussed the activities of his businesses, and we have never talked about any case or issue before the Court.”

Those excuses are no different than the excuses offered by physicians over many decades when confronted by stark evidence that their prescribing patterns were influenced by the pharmaceutical industry, which routinely markets drugs by offering prescribers free meals and travel to all-expenses-paid conferences where the latest advances in a field of medicine are discussed by industry-funded “thought leaders.” These marketing tactics lay at the heart of the Department of Justice’s and state lawsuits against the Sackler family and Purdue Pharma for its marketing of the opioid OxyContin, whose profligate use and abuse led to over 500,000 deaths in the U.S. and is still raising havoc in many low- and moderate-income communities, urban and rural.

The pernicious influence of the drug industry over medical practice extends to funding most of the research that informs the clinical practice guidelines written by physician professional societies, which also receive substantial industry funding to finance their efforts. A recent study found only a third of physicians writing guidelines disclosed they received payments from industry, even though the Centers for Medicare and Medicaid Services’ Open Payments database revealed more than three-quarters were actually taking cash from Big Pharma.

Nearly two decades ago, I worked for a public interest group whose mission included exposing conflicts of interest in science and limiting corporate influence over the government regulatory process. That work necessarily required delving into industry influence over medical, environmental and food science.

I also worked with environmental, consumer and other groups to stop scientists whose research was funded by industry from serving on federal advisory committees. The 1972 Federal Advisory Committee Act requires the FDA, EPA and and other regulatory bodies use independent scientists to weigh the scientific evidence (“Is this drug safe and effective?”; “Is that chemical hazardous to health?”) when carrying out their Congressional mandates.

Waiving away conflicts

I quickly discovered the law, passed in conjunction with a slew of new environmental and consumer protection laws whose enforcement required scientific expertise, was honored mostly in the breach. Agencies frequently allowed conflicted scientists to serve on advisory committees by citing the law’s exception that a waiver could be granted if an individual’s expertise was deemed necessary to its work.

And what did all the physicians and scientists say when confronted with their conflicts of interest? How did they respond when asked to step down from those committees in favor of someone who might review the evidence more objectively? Paraphrasing here: “It has no influence over my thinking. I am completely objective.”

This ignores the extensive social science research on the psychology of gift-giving. No matter how small the monetary value of the gift — whether it is a family exchange during the holidays, a free dinner to hear a presentation, or a free flight to a fishing trip — it creates a sense of mutual obligation (“reciprocity”) among both parties, and is particularly influential with the person on the receiving end.

Dr. Douglas S. Diekema, a professor of pediatrics at the University of Washington, recently offered an excellent summary of how this works between drug makers and physicians in the journal Pediatrics:

To fully appreciate the susceptibility of individuals to the subtle marketing techniques used by the industry requires an understanding of the scientific basis of both influence and reciprocity. Much cognitive activity occurs without conscious awareness, and the most effective marketing and persuasion strategies are designed to engage the subconscious aspects of decision making, making it difficult for an individual to fully “manage” the basis on which they make decisions. Favors (and gifts), independent of any monetary value, represent one mechanism that effectively influences behavior at a subconscious level, by generating positive feelings about the person or entity performing the favor. 

The transparency fallacy

Institutions like the Supreme Court and federal advisory committees invariably choose disclosure as the best way to “manage” the conflicts of interest that, whether they admit it or not, influence their decisions. The idea behind disclosure is that it will, over time, reduce decision-makers’ willingness to accept gifts, since they will be exposed for all to see. Disclosure also gives the general public a tool for evaluating whether the decisions by judges, scientists and physicians have been influenced by conflicts of interest.

We now have a good test of how well disclosure works. In 2010, Congress, with Republican Sen. Charles Grassley of Iowa in the lead, included the Physician Payments Sunshine Act in the Affordable Care Act. It required all makers of drugs, biologics and medical devices to report both the nature and amount of their gifts to individual physicians, whether in the form of free meals and travel, research funding, honoraria or royal payments, and make it available in a publicly-accessible database.

The first year the database was up and running was 2015. As you can see from the chart below (the latest data for 2022 was released today), disclosure has not reduced the reciprocity-inducing largesse offered by companies, nor the willingness of physicians to accept those payments. In fact, last year, they rose to their highest level since reporting began. The brief pause in direct payments to physicians during the first two years of the pandemic corresponded with office shutdowns, when drug industry salespersons (called “detailers” in the trade) were not allowed to visit their offices and clinic.

Nor has transparency had any impact on physician prescribing patterns. A Food and Drug Administration-funded survey of 2,000 health care providers, published in 2021, found their prescribing patterns were still “significantly” influenced by industry promotions and gifts. Specialists — the physicians most likely to prescribe the priciest new therapies on the market — were “significantly more likely to prescribe off-label and serve as opinion leaders for the pharmaceutical industry compared to other provider groups.”

Democrats on Capitol Hill are pushing the Chief Justice John Roberts to adopt tighter ethics rules. They might want to take a look at the evidence contained in CMS’ physician payments database. Democrats on the Senate Judiciary Committee, led by chairman Richard Durbin of Illinois and Sheldon Whitehouse of Rhode Island, are promising to pass a Supreme Court ethics bill that will rely primarily on disclosure to curb the influence-seeking gift-giving now exposed as rampant on the high court.

“Chief Justice Roberts can solve this problem this afternoon,” Durbin told reporters last week. “He can establish a code of conduct and the responsibility of his justices. To disclose everything and be done with us.”

I suggest a different strategy. Roberts should borrow a page from Nancy Reagan and her war on drugs, launched when her husband was running for a second term in office. Adopt an ethics rule that says, “Just say no.”