January 17, 2006
King & Spalding LLP
1700 Pennsylvania Avenue, N.W.
Washington, DC 20006-4706
RE: Ethics Board Docket No. 2005-560
Dear Mr. Bentivoglio:
The Louisiana Board of Ethics, at its January 12, 2006 meeting, considered your revised request for an advisory opinion concerning 1) whether the educational and detailing practices of pharmaceutical and biotechnology employees directed toward physicians and other health care professionals practicing or affiliated with public hospitals, which are conducted for the purposes of educating practitioners about available pharmaceutical products and the risks and benefits associated with drugs to better enable practitioners to make appropriate patient treatment choices, fall within the definition of “lobbying”under the Executive Branch Lobbying Act and 2) whether prescription drug samples are a thing of economic value. Additionally, in the original request for an advisory opinion, State and Federal, on whose behalf you are now seeking the request, specifically asked whether placing a drug on a formulary list amounted to an executive branch action.
The Board concluded, and instructed me to inform you, that the educational and detailing practices of pharmaceutical and biotechnology employees directed toward physicians and other health care professionals practicing or affiliated with public hospitals, which are conducted for the purposes of educating practitioners about available pharmaceutical products and the risks and benefits associated with drugs to better enable practitioners to make appropriate patient treatment choices, is considered “lobbying.” La. R.S.49:72(6) defines “lobbying” as “any direct act or communication with an executive branch official, the purpose of which is to aid in influencing an executive branch action.” State hospitals are agencies under the Department of Health and Hospitals within the Executive Branch of the State of Louisiana; therefore, state hospital employees are considered executive branch officials. La. R.S.49:72(2) defines “Executive branch action” as “any act by an executive branch agency or official to effectuate the public powers, functions, and duties of an executive branch official or an executive branch agency.”(Emphasis added.) Prescribing medication to patients is a duty of a physician employed by a state hospital. Thus, prescribing a particular medicine would meet the definition of “executive branch action.” Therefore, any direct act or communication with executive branch officials in connection with the education or promotion of pharmaceutical products constitutes “lobbying.”Accordingly, pharmaceutical industry employees are required to register as lobbyists within five days of making “expenditures” of more than $500. An “expenditure” is defined as “the gift or payment of money or anything of value when the amount of value exceeds ten dollars for the purchase of food, drink, or refreshment for an executive branch official and any gift or payment permitted by R.S. 42:1123(13) when the value exceeds ten dollars for the purpose of lobbying when the lobbyist or principal accounts, or would be expected to account, for the expenditure as an ordinary and necessary expense directly related to the active conduct of the lobbyist’s, his employer’s, or the principal’s trade or business.”
Additionally, the Board would like to address the issue of whether placing a drug on a formulary constitutes an “executive branch action” as raised in the original request for an advisory opinion. The Board concluded that placing a drug on a formulary list constitutes an “executive branch action,” as it requires the executive branch official to take action to effectuate his duties. Therefore, taking action to get a drug placed on a formulary list is considered “lobbying.”
The Board deferred action with respect to the issue of whether drug samples constitute a “thing of economic value” until the February 9, 2006 meeting.
The Board issues no opinion as to laws other than the Louisiana Code of Governmental Ethics. If you have any questions, please feel free to contact me at (225)763-8777 or 1-800-842-6630.
LOUISIANA BOARD OF ETHICS
Melissa M. McConnell
For the Board