Prozac Nightmare
Marketers likely will face tighter scrutiny and even regulation of consumer privacy as a sampling scandal continues to unfold in Florida, where at least 300 people — including a 16-year-old boy — got unsolicited samples of Prozac in the mail.
A Florida woman filed suit against Prozac maker Eli Lilly & Co. and others in early July after getting a sample of Prozac Weekly, accompanied by a letter signed by the doctor treating her for depression. Several Prozac recipients have since joined the invasion-of-privacy suit, and Florida attorney general Bob Butterworth opened an investigation against Indianapolis-based Lilly; Deerfield, IL-based Walgreen Co., which mailed the drug; Holy Cross Hospital Inc.; and three doctors and one physician’s assistant at the Ft. Lauderdale practice treating the original plaintiff.
Lilly disciplined (fired, demoted, put on probation, or warned) three sales managers and five sales reps who apparently instigated the sampling effort. Lilly contends that fewer than 150 were mailed, but investigators confirmed at least 300 recipients, says attorney Gary Farmer, who represents the original plaintiff. The teenager got his sample through a different doctor’s office.
The scandal could prompt federal legislation against targeted marketing amidst growing concern over consumer privacy.
“If industry is unable to make consumers comfortable with its handling of [their] personal information, it can expect Congress to set a federal baseline of privacy standards and for the FTC to be aggressive in bringing enforcement actions until then,” says privacy expert Reed Freeman, a lawyer with Collier Shannon Scott, Washington, DC. “The message from Congress and the FTC has been for some time that sensitive personal information should be treated with the highest level of care.”
The suit filed in state court in Broward County charges Lilly, Walgreens, and the woman’s doctor with invasion of privacy and improper medical practice. Walgreens filled and mailed the prescriptions in exchange for reimbursement via product-sample coupons from Lilly. Walgreens apparently used the “Dear Patient” letter signed by a Holy Cross doctor (and allegedly drafted by a Lilly sales rep) as a prescription, because three plaintiffs have no prescriptions in their charts, says Farmer. “I think Lilly reps got at least one doctor in each practice to give the names and addresses to facilitate this mailing,” he says.
Lilly calls it “a very limited incident” only in south Florida. “Some activities of Lilly sales personnel … were inconsistent with Lilly policy,” says spokesperson Blair Austin. “It is inappropriate … to support programs in which medicine is mailed to patients without the patient’s request.”
Walgreens stresses that “patient privacy was not violated,” says Walgreens spokesperson Carol Hively. “No patient information was provided to Lilly or to any physician’s office. … Our pharmacist called the doctor’s office for verification of both the prescription and the direction to mail it to the patient. … We regret the drug was delivered in this manner.”
Florida’s AG wants to know whether the mailings violate the Deceptive and Unfair Trade Practices Act or other state laws. The Department of Health is investigating possible violations of the state’s Medical Practices Act. The Federal Trade Commission is “following the situation very closely, given that we put Lilly under order in January for privacy issues,” says FTC spokesperson Derrick Rill. Lilly settled with the FTC in January after an e-mail reminder service for Prozac patients inadvertently listed the e-mail addresses of all subscribers in the “To” line of a message (March PROMO). It also settled in July with eight state attorneys general for a total $160,000.
