Advertising policies of medical journals: Conflicts of interest for journal editors and professional societies

Journal of Law, Medicine and Ethics

Volumn 27, Issue 2, 1999, Pages 113-121

  Orentlicher, David ^a   Hehir II, Michael K ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

DRUG;

ADVERTIZING; ARTICLE; BIOMEDICAL AND BEHAVIORAL RESEARCH; CONFLICT OF INTEREST; DRUG INDUSTRY; ECONOMICS; HEALTH CARE AND PUBLIC HEALTH; HEALTH CARE ORGANIZATION; HUMAN; INDUSTRY; INFORMATION DISSEMINATION; INFORMATION SERVICE; MEDICAL RESEARCH; PHYSICIAN; PRACTICE GUIDELINE; PUBLISHING; RESEARCH; RISK; RISK ASSESSMENT; TRUST;

BIOMEDICAL AND BEHAVIORAL RESEARCH; HEALTH CARE AND PUBLIC HEALTH;

ADVERTISING; BIOMEDICAL RESEARCH; CONFLICT OF INTEREST; DRUG INDUSTRY; ECONOMICS; EDITORIAL POLICIES; GUIDELINES; HUMANS; INDUSTRY; INFORMATION DISSEMINATION; INFORMATION SERVICES; PHARMACEUTICAL PREPARATIONS; PHYSICIANS; PUBLISHING; RESEARCH; RISK; RISK ASSESSMENT; SOCIETIES; TRUST;

EID: 0033139871     PISSN: 10731105     EISSN: None     Source Type: Journal    
DOI: 10.1111/j.1748-720X.1999.tb01443.x     Document Type: Article

References (72)

1. Journal advertising creates other ethical concerns in addition to the conflicts of interest concerns that we discuss. For example, expenditures on advertising arguably raise the costs of drugs to patients, creating hardship for poor patients. These other ethical concerns, while important, are beyond our scope.
2. Indeed, at times, journal editors forthrightly confront the concerns raised by journal advertising. The Annals of Internal Medicine published an article critical of advertising content. See M.S. Wilkes, B.H. Doblin, M.F. Shapiro, "Pharmaceutical Advertisements in Leading Medical Journals: Experts' Assessments," Annals of Internal Medicine, 116 (1992): 912-19. Similarly, the New England Journal of Medicine and the Journal of the American Medical Association (JAMA) have published articles questioning the influence of advertising on the journal editorial process. See L.A. Bero, A. Galbraith, and D. Rennie, "The Publication of Sponsored Symposiums in Medical Journals," N. Engl. J. Med., 327 (1992): 1135-40; and P.A. Rochon et al., "Evaluating the Quality of Articles Published in Journal Supplements Compared with the Quality of Those Published in the Parent Journal," JAMA, 272 (1994): 108-13. Still, one cannot conclude that, because journal editors sometimes resist a conflict of interest, they always do so.
3. Indeed, at times, journal editors forthrightly confront the concerns raised by journal advertising. The Annals of Internal Medicine published an article critical of advertising content. See M.S. Wilkes, B.H. Doblin, M.F. Shapiro, "Pharmaceutical Advertisements in Leading Medical Journals: Experts' Assessments," Annals of Internal Medicine, 116 (1992): 912-19. Similarly, the New England Journal of Medicine and the Journal of the American Medical Association (JAMA) have published articles questioning the influence of advertising on the journal editorial process. See L.A. Bero, A. Galbraith, and D. Rennie, "The Publication of Sponsored Symposiums in Medical Journals," N. Engl. J. Med., 327 (1992): 1135-40; and P.A. Rochon et al., "Evaluating the Quality of Articles Published in Journal Supplements Compared with the Quality of Those Published in the Parent Journal," JAMA, 272 (1994): 108-13. Still, one cannot conclude that, because journal editors sometimes resist a conflict of interest, they always do so.
4. Indeed, at times, journal editors forthrightly confront the concerns raised by journal advertising. The Annals of Internal Medicine published an article critical of advertising content. See M.S. Wilkes, B.H. Doblin, M.F. Shapiro, "Pharmaceutical Advertisements in Leading Medical Journals: Experts' Assessments," Annals of Internal Medicine, 116 (1992): 912-19. Similarly, the New England Journal of Medicine and the Journal of the American Medical Association (JAMA) have published articles questioning the influence of advertising on the journal editorial process. See L.A. Bero, A. Galbraith, and D. Rennie, "The Publication of Sponsored Symposiums in Medical Journals," N. Engl. J. Med., 327 (1992): 1135-40; and P.A. Rochon et al., "Evaluating the Quality of Articles Published in Journal Supplements Compared with the Quality of Those Published in the Parent Journal," JAMA, 272 (1994): 108-13. Still, one cannot conclude that, because journal editors sometimes resist a conflict of interest, they always do so.
5. A striking example of the subconscious influence of a conflict of interest is the commonly observed phenomenon in law that respected attorneys on both sides of a case tend to become truly convinced of the merit of their clients' positions.
6. See "Index to advertisers," JAMA, 281 (1999): 2259.
7. In the "Advertising Policy of Annals of Internal Medicine," the journal lists several examples of "Unacceptable Advertising." Among the examples are "ads for products and services not directly relevant to the practice of medicine." For the New England Journal of Medicine, "all advertising must be clearly germane to the practice of medicine."
8. See JAMA, 278 (1997): 696a; and JAMA, 278 (1997): 1472a.
9. See JAMA, 278 (1997): 696a; and JAMA, 278 (1997): 1472a.
10. See JAMA, 277 (1997): 688e; JAMA, 277 (1997): 770t; and JAMA, 277 (1997): 792i.
11. See JAMA, 277 (1997): 688e; JAMA, 277 (1997): 770t; and JAMA, 277 (1997): 792i.
12. See JAMA, 277 (1997): 688e; JAMA, 277 (1997): 770t; and JAMA, 277 (1997): 792i.
13. See personal communication with Stuart H. Williams, Director of Advertising Sales, Journal of the American Medical Association (Sept. 29, 1998, and June 24, 1999).
14. See Bero, Galbraith, and Rennie, supra note 2.
15. See Rochon et al., supra note 2.
16. See M. Chren, C.S. Landefeld, and T.H. Murray, "Doctors, Drug Companies, and Gifts," JAMA, 262 (1989): 3448-51.
17. See J.A. Clifton and E.J. Huth, "Old Friends Among Our Advertisers," Annals of Internal Medicine, 87 (1977): 115. We do not mean to suggest that journal editors are corrupted, only that they face incentives that go in different directions. For example, take the analogy that may exist with prominent academic faculty who speak at professional conferences on behalf of drug companies. The faculty see themselves as being chosen because of their significant contributions to scholarship, and the companies like to associate themselves with highly respected faculty. Still, we have to worry that the relationship will influence what the faculty say and do.
18. We have presented a hypothetical example in the text, but a recent real example illustrates the possible influence of an editor's personal interests on editorial judgment. Earlier in 1999, during the impeachment proceedings of President Clinton, JAMA published an article reporting the views of college students about oral sex. See S.A. Sanders and J.M. Reinisch, "Would You Say You 'Had Sex' If... ?," JAMA, 281 (1999): 275-77. The article seemed to support President Clinton's claim that he did not lie when he denied having sexual relations with Monica Lewinsky, even though she had performed oral sex on him. Many people felt that the article should not have been published because of its political orientation and the fact that the data came from one university survey conducted eight years earlier. See G. Kolata, "Editor of A.M.A. Journal Is Dismissed Over Sex Paper," New York Times, Jan. 16, 1999, at A10. One could easily conclude that those considerations would have led a journal editor who disliked President Clinton to reject the article.
19. We have presented a hypothetical example in the text, but a recent real example illustrates the possible influence of an editor's personal interests on editorial judgment. Earlier in 1999, during the impeachment proceedings of President Clinton, JAMA published an article reporting the views of college students about oral sex. See S.A. Sanders and J.M. Reinisch, "Would You Say You 'Had Sex' If... ?," JAMA, 281 (1999): 275-77. The article seemed to support President Clinton's claim that he did not lie when he denied having sexual relations with Monica Lewinsky, even though she had performed oral sex on him. Many people felt that the article should not have been published because of its political orientation and the fact that the data came from one university survey conducted eight years earlier. See G. Kolata, "Editor of A.M.A. Journal Is Dismissed Over Sex Paper," New York Times, Jan. 16, 1999, at A10. One could easily conclude that those considerations would have led a journal editor who disliked President Clinton to reject the article.
20. See Note, "Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance," Harvard Law Review, 100 (1987): 2035-73; K.M Kramer and A.B. Mayerson, "Obesity Discrimination in the Workplace: Protection Through a Perceived Disability Claim Under the Rehabilitation Act and the Americans with Disabilities Act," California Western Law Review, 31 (1994): 41-72; T.A. Wadden and A.J. Stunkard, "Psychological Consequences of Obesity and Dieting: Research and Clinical Findings," in A.J. Stunkard and T.A. Wadden, eds., Obesity: Theory and Therapy (New York: Raven Press, 2nd ed., 1993): 163-77.
21. See Note, "Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance," Harvard Law Review, 100 (1987): 2035-73; K.M Kramer and A.B. Mayerson, "Obesity Discrimination in the Workplace: Protection Through a Perceived Disability Claim Under the Rehabilitation Act and the Americans with Disabilities Act," California Western Law Review, 31 (1994): 41-72; T.A. Wadden and A.J. Stunkard, "Psychological Consequences of Obesity and Dieting: Research and Clinical Findings," in A.J. Stunkard and T.A. Wadden, eds., Obesity: Theory and Therapy (New York: Raven Press, 2nd ed., 1993): 163-77.
22. See Note, "Facial Discrimination: Extending Handicap Law to Employment Discrimination on the Basis of Physical Appearance," Harvard Law Review, 100 (1987): 2035-73; K.M Kramer and A.B. Mayerson, "Obesity Discrimination in the Workplace: Protection Through a Perceived Disability Claim Under the Rehabilitation Act and the Americans with Disabilities Act," California Western Law Review, 31 (1994): 41-72; T.A. Wadden and A.J. Stunkard, "Psychological Consequences of Obesity and Dieting: Research and Clinical Findings," in A.J. Stunkard and T.A. Wadden, eds., Obesity: Theory and Therapy (New York: Raven Press, 2nd ed., 1993): 163-77.
23. See D. Hemenway et al., "Physicians' Responses to Financial Incentives: Evidence from a For-profit Ambulatory Care Center," N. Engl. J. Med., 322 (1990): 1059-63.
24. See D. Rennie, "Editors and Advertisements: What Responsibility Do Editors Have for the Advertisements in Their Journals?," JAMA, 265 (1991): 2394-96; and P.B. Fontanarosa, R.M. Glass, and P.J. Murphy, Letter, "Bioequivalence of Levothyroxine Preparations: Issues of Science, Publication, and Advertising," JAMA, 278 (1997): 899-900.
25. See D. Rennie, "Editors and Advertisements: What Responsibility Do Editors Have for the Advertisements in Their Journals?," JAMA, 265 (1991): 2394-96; and P.B. Fontanarosa, R.M. Glass, and P.J. Murphy, Letter, "Bioequivalence of Levothyroxine Preparations: Issues of Science, Publication, and Advertising," JAMA, 278 (1997): 899-900.
26. B. J. Dong et al., "Bioequivalence of Generic and Brand-Name Levothyroxine Products in the Treatment of Hypothyroidism," JAMA, 277 (1997): 1205-13.
27. See JAMA, 277 (1997): flyleaf between 1178h & 1178o; flyleaf between 1246 & 1247; and K.M. Lankin, Letter, "Bioequivalence of Levothyroxine Preparations: Issues of Science, Publication, and Advertising," JAMA, 278 (1997): 897.
28. See JAMA, 277 (1997): flyleaf between 1178h & 1178o; flyleaf between 1246 & 1247; and K.M. Lankin, Letter, "Bioequivalence of Levothyroxine Preparations: Issues of Science, Publication, and Advertising," JAMA, 278 (1997): 897.
29. See JAMA, 277 (1997): flyleaf between 1178h & 1178o; flyleaf between 1246 & 1247; and K.M. Lankin, Letter, "Bioequivalence of Levothyroxine Preparations: Issues of Science, Publication, and Advertising," JAMA, 278 (1997): 897.
30. See Fontanarosa, Glass, and Murphy, supra note 16.
31. See M.T. Bramblett, Letter, "Bioequivalence of Levothyroxine Preparations: Issues of Science, Publication, and Advertising," JAMA, 278 (1997): 899. In fact, advertisers may learn about forthcoming articles more through subterfuge than through collusion with journal editors. Nevertheless, the concern here is the appearance of impropriety, and episodes like the one involving the thyroid hormone study in JAMA contribute to the perception that advertising influences editorial decisions.
32. See R.S. DiPaola et al., "Clinical and Biologic Activity of an Estrogenic Herbal Combination (PC-SPES) in Prostate Cancer," N. Engl. J. Med., 339 (1998): 785-91; and N.R. Slifman et al., "Contamination of Botanical Dietary Supplements by digitalis lanata," N. Engl. J. Med., 339 (1998): 806-11.
33. See R.S. DiPaola et al., "Clinical and Biologic Activity of an Estrogenic Herbal Combination (PC-SPES) in Prostate Cancer," N. Engl. J. Med., 339 (1998): 785-91; and N.R. Slifman et al., "Contamination of Botanical Dietary Supplements by digitalis lanata," N. Engl. J. Med., 339 (1998): 806-11.
34. See M.J. Coppes et al., Letter, "Alternative Therapies for the Treatment of Childhood Cancer," N. Engl. J. Med., 339 (1998): 846-47; R.J. Ko, Letter, "Adulterants in Asian Patent Medicines," N. Engl. J. Med., 339 (1998): 847; and F. LoVecchio, S.C. Curry, and T. Bagnasco, Letter, "Butyrolactone-Induced Central Nervous System Depression after Ingestion of RenewTrient, a 'Dietary Supplement'," N. Engl. J. Med., 339 (1998): 847-48.
35. See M.J. Coppes et al., Letter, "Alternative Therapies for the Treatment of Childhood Cancer," N. Engl. J. Med., 339 (1998): 846-47; R.J. Ko, Letter, "Adulterants in Asian Patent Medicines," N. Engl. J. Med., 339 (1998): 847; and F. LoVecchio, S.C. Curry, and T. Bagnasco, Letter, "Butyrolactone-Induced Central Nervous System Depression after Ingestion of RenewTrient, a 'Dietary Supplement'," N. Engl. J. Med., 339 (1998): 847-48.
36. See M.J. Coppes et al., Letter, "Alternative Therapies for the Treatment of Childhood Cancer," N. Engl. J. Med., 339 (1998): 846-47; R.J. Ko, Letter, "Adulterants in Asian Patent Medicines," N. Engl. J. Med., 339 (1998): 847; and F. LoVecchio, S.C. Curry, and T. Bagnasco, Letter, "Butyrolactone-Induced Central Nervous System Depression after Ingestion of RenewTrient, a 'Dietary Supplement'," N. Engl. J. Med., 339 (1998): 847-48.
37. See M. Angell and J.P. Kassirer, Editorial, "Alternative Medicine - The Risks of Untested and Unregulated Remedies," N. Engl. J. Med., 339 (1998): 839-41.
38. See C. Gorton, Letter, "Butyrolactone-Induced Central Nervous System Depression after Ingestion of RenewTrient, a 'Dietary Supplement'," N. Engl. J. Med., 339 (1998): 848.
39. See R. Siegel and L. Wertheimer, "Alternative Medicine," All Things Considered (National Public Radio broadcast, Sept. 16, 1998) (Transcript No. 98091613-212).
40. See T.K. Hazlet and S.D. Sullivan, "Professional Organizations and Healthcare Industry Support: Ethical Conflict?," Cambridge Quarterly Healthcare Ethics, 3 (1994): 236-56; and K. Leffler, "Persuasion or Information? The Economics of Prescription Drug Advertising," Journal of Law & Economics, 24 (1981): 45-74.
41. See T.K. Hazlet and S.D. Sullivan, "Professional Organizations and Healthcare Industry Support: Ethical Conflict?," Cambridge Quarterly Healthcare Ethics, 3 (1994): 236-56; and K. Leffler, "Persuasion or Information? The Economics of Prescription Drug Advertising," Journal of Law & Economics, 24 (1981): 45-74.
42. See J. Avorn, M. Chen, and R. Hartley, "Scientific Versus Commercial Sources of Influence on the Prescribing Behavior of Physicians," American Journal of Medicine, 264 (1990): 2409-15.
43. See Wilkes, Doblin, and Shapiro, supra note 2.
44. Some would argue that, instead of curtailing health care advertising, we should turn to better education of physicians to ensure that they appropriately weigh the informational value of journal advertisements. It is not clear how successful better education would be at addressing the influence of advertising on physicians' practices. Physicians may come to rely on advertising not because they do not know better, but because it is more time consuming and expensive to seek out more reliable sources of information. In any event, better education is a long-term strategy that cannot address the problems created in the short term by medical journal advertising.
45. See R.L. Kennett and M. Liebman, "Too Tight a Focus in Micromarketing?," Medical Marketing & Media, 29, no. 7 (1994): 66. In fact, however, physicians might be influenced more by other sources of information, including the views of trusted colleagues. See D. Orentlicher, "The Influence of a Professional Organization on Physician Behavior," Albany Law Review, 57 (1994): 583-605.
46. See R.L. Kennett and M. Liebman, "Too Tight a Focus in Micromarketing?," Medical Marketing & Media, 29, no. 7 (1994): 66. In fact, however, physicians might be influenced more by other sources of information, including the views of trusted colleagues. See D. Orentlicher, "The Influence of a Professional Organization on Physician Behavior," Albany Law Review, 57 (1994): 583-605.
47. Material in Drug Evaluations was developed as follows: Chapters initially are prepared by the professional staff of the AMA Division of Drugs and Toxicology on the basis of the current scientific literature. Chapter drafts then are reviewed by distinguished expert consultants (more than 800 participate for the entire text) and by the medical staffs of the pharmaceutical manufacturers whose products are evaluated. Division of Drugs and Toxicology, American Medical Association, Drug Evaluations: Annual 1995 (Chicago: American Medical Association, 1995): at iii [hereinafter Drug Evaluations].
48. For example, in creating its legal standard for evaluating claims of discrimination on the basis of disability, the U.S. Supreme Court adopted a standard proposed by the American Medical Association (AMA) in its amicus curiae brief. See School Board of Nassau County v. Arline, 480 U.S. 273, 288 (1987). Similarly, at oral argument in Patrick v. Burget, 486 U.S. 94 (1988), Justice O'Connor asked Dr. Timothy Patrick's lawyer what he thought of the standard proposed for the state action doctrine by the AMA.
49. For example, in its discussion of drugs for chronic heart failure in May 1993 and January 1999, The Medical Letter advised that patients with heart failure due to left ventricular dysfunction take an angiotensin-converting enzyme inhibitor drug, plus a digoxin and diuretic or plus a beta-blocker. See Medical Letter, 35 (1993): at 42 (advising use of a digoxin and diuretic); and Medical Letter, 41 (1999): 14 (advising use of a beta-blocker). In contrast, Drug Evaluations advised in 1995 that a combination of different drugs is usually required, but did not endorse one particular combination. See Drug Evaluations, supra note 31, at 687. Similarly, The Medical Letter concluded in 1994 that torsemide "offers no clear advantage over older, less expensive drugs," while Drug Evaluations simply advised in 1995 that there has been limited experience with the drug. Medical Letter, 36 (1994): at 74; and Drug Evaluations, supra note 31, at 620.
50. For example, in its discussion of drugs for chronic heart failure in May 1993 and January 1999, The Medical Letter advised that patients with heart failure due to left ventricular dysfunction take an angiotensin-converting enzyme inhibitor drug, plus a digoxin and diuretic or plus a beta-blocker. See Medical Letter, 35 (1993): at 42 (advising use of a digoxin and diuretic); and Medical Letter, 41 (1999): 14 (advising use of a beta-blocker). In contrast, Drug Evaluations advised in 1995 that a combination of different drugs is usually required, but did not endorse one particular combination. See Drug Evaluations, supra note 31, at 687. Similarly, The Medical Letter concluded in 1994 that torsemide "offers no clear advantage over older, less expensive drugs," while Drug Evaluations simply advised in 1995 that there has been limited experience with the drug. Medical Letter, 36 (1994): at 74; and Drug Evaluations, supra note 31, at 620.
51. For example, in its discussion of drugs for chronic heart failure in May 1993 and January 1999, The Medical Letter advised that patients with heart failure due to left ventricular dysfunction take an angiotensin-converting enzyme inhibitor drug, plus a digoxin and diuretic or plus a beta-blocker. See Medical Letter, 35 (1993): at 42 (advising use of a digoxin and diuretic); and Medical Letter, 41 (1999): 14 (advising use of a beta-blocker). In contrast, Drug Evaluations advised in 1995 that a combination of different drugs is usually required, but did not endorse one particular combination. See Drug Evaluations, supra note 31, at 687. Similarly, The Medical Letter concluded in 1994 that torsemide "offers no clear advantage over older, less expensive drugs," while Drug Evaluations simply advised in 1995 that there has been limited experience with the drug. Medical Letter, 36 (1994): at 74; and Drug Evaluations, supra note 31, at 620.
52. For example, in its discussion of drugs for chronic heart failure in May 1993 and January 1999, The Medical Letter advised that patients with heart failure due to left ventricular dysfunction take an angiotensin-converting enzyme inhibitor drug, plus a digoxin and diuretic or plus a beta-blocker. See Medical Letter, 35 (1993): at 42 (advising use of a digoxin and diuretic); and Medical Letter, 41 (1999): 14 (advising use of a beta-blocker). In contrast, Drug Evaluations advised in 1995 that a combination of different drugs is usually required, but did not endorse one particular combination. See Drug Evaluations, supra note 31, at 687. Similarly, The Medical Letter concluded in 1994 that torsemide "offers no clear advantage over older, less expensive drugs," while Drug Evaluations simply advised in 1995 that there has been limited experience with the drug. Medical Letter, 36 (1994): at 74; and Drug Evaluations, supra note 31, at 620.
53. For example, in its discussion of drugs for chronic heart failure in May 1993 and January 1999, The Medical Letter advised that patients with heart failure due to left ventricular dysfunction take an angiotensin-converting enzyme inhibitor drug, plus a digoxin and diuretic or plus a beta-blocker. See Medical Letter, 35 (1993): at 42 (advising use of a digoxin and diuretic); and Medical Letter, 41 (1999): 14 (advising use of a beta-blocker). In contrast, Drug Evaluations advised in 1995 that a combination of different drugs is usually required, but did not endorse one particular combination. See Drug Evaluations, supra note 31, at 687. Similarly, The Medical Letter concluded in 1994 that torsemide "offers no clear advantage over older, less expensive drugs," while Drug Evaluations simply advised in 1995 that there has been limited experience with the drug. Medical Letter, 36 (1994): at 74; and Drug Evaluations, supra note 31, at 620.
54. See R.H. Fletcher and S.W. Fletcher, "Pharmaceutical Advertisements in Medical Journals," Annals of Internal Medicine, 116 (1992): 951-52.
55. See C. Brown, "Callaway is Prepared to Fight Any Ban on Clubs," New York Times, May 23, 1998, at C6.
56. Mark Hall pointed out to us that, in the past, medical journals may have thought there were tax reasons to accept only health-related advertising and to justify such a policy on educational grounds. See Personal Communication with Mark Hall, Professor, Wake Forest University (June 4, 1999). In 1967, the U.S. Treasury adopted a regulation that subjected to taxation the commercial ventures of tax-exempt organizations that were not substantially related to the purposes of their tax exemption. A medical journal might have concluded that it could escape taxation for its advertising if the advertisements were health related. That interpretation was finally foreclosed by the U.S. Supreme Court in 1986. See 17.5. v. American College of Physicians, 475 U.S. 834 (1986). Tax incentives are not the entire story, however. The nearly exclusive use of health-related advertising can be found in issues of leading medical journals even in the years predating the influence of tax regulations. See, for example, "Index to Advertisers," JAMA, 191 (1965): 222. Also, medical journals that are run by for-profit companies have the same advertising policies as journals run by nonprofit professional societies. Another possible explanation is United States Postal Service (USPS) regulations governing periodicals. The guidelines for nonprofit mailings stipulate, among other things, that any advertisements contained in periodicals have to meet a "substantial relatedness" test, that is, the advertisements accepted have to relate to the nonprofit association's mission. See United States Postal Service, Nonprofit Standard Mail Eligibility: Nonprofit and Other Qualified Organizations (Washington, D.C.: Corporate Publishing and Information Management, Publ. No. 417, Oct. 1996): §§ 6-3.6.1-.62. Although the major medical journals use a different mailing class for their periodicals, and thereby are not restricted by this test, the fact the major medical journals are owned by nonprofits might have had some bearing on how the policy came into being.
57. Mark Hall pointed out to us that, in the past, medical journals may have thought there were tax reasons to accept only health-related advertising and to justify such a policy on educational grounds. See Personal Communication with Mark Hall, Professor, Wake Forest University (June 4, 1999). In 1967, the U.S. Treasury adopted a regulation that subjected to taxation the commercial ventures of tax-exempt organizations that were not substantially related to the purposes of their tax exemption. A medical journal might have concluded that it could escape taxation for its advertising if the advertisements were health related. That interpretation was finally foreclosed by the U.S. Supreme Court in 1986. See 17.5. v. American College of Physicians, 475 U.S. 834 (1986). Tax incentives are not the entire story, however. The nearly exclusive use of health-related advertising can be found in issues of leading medical journals even in the years predating the influence of tax regulations. See, for example, "Index to Advertisers," JAMA, 191 (1965): 222. Also, medical journals that are run by for-profit companies have the same advertising policies as journals run by nonprofit professional societies. Another possible explanation is United States Postal Service (USPS) regulations governing periodicals. The guidelines for nonprofit mailings stipulate, among other things, that any advertisements contained in periodicals have to meet a "substantial relatedness" test, that is, the advertisements accepted have to relate to the nonprofit association's mission. See United States Postal Service, Nonprofit Standard Mail Eligibility: Nonprofit and Other Qualified Organizations (Washington, D.C.: Corporate Publishing and Information Management, Publ. No. 417, Oct. 1996): §§ 6-3.6.1-.62. Although the major medical journals use a different mailing class for their periodicals, and thereby are not restricted by this test, the fact the major medical journals are owned by nonprofits might have had some bearing on how the policy came into being.
58. See American College of Physicians, 475 U.S. at 847-50.
59. See id. at 849.
60. If medical journals mix health-related and nonhealth-related advertisements, advertising revenue might decline rather than increase. Health-related companies are willing to pay higher fees than other companies will pay, and journals may not be able to sustain a two-tiered fee structure. As a result, the journals might have to lower their fees for health-related advertisements. In addition, health care companies apparently prefer not to advertise in medical journals if nonhealth care advertising is also present, possibly because the other advertising diverts the attention of readers. If health care companies cannot escape competition with nonhealth care companies by advertising in medical journals, they may have an even stronger interest in advertising directly to consumers in lay journals, where nonhealth care advertising already exists. As to whether a drop in revenues from mixing health-related and nonhealth-related advertising justifies a policy of accepting only health-related advertisements, see the discussion below regarding the potential drop in revenues from excluding all health-related advertisements.
61. See J.F. Goldstein, "Of Mugs and Marketing," JAMA, 265 (1991): 2391-92.
62. When similar conflicts of interest arise with industry funding, it is often the case that the benefits of the funding outweigh the risks of harm. For example, pharmaceutical companies are a leading source of funding for biomedical research, and the funding creates a conflict of interest for the recipients who conduct the research. Safeguards have developed to limit the risk (including disclosures of the conflicts), and it is generally believed that the public would be worse off if the funding were cut off entirely. Still, each conflict of interest raised by industry funding must be considered on its own terms. The balance of benefits and risks will play out differently in different cases, with benefits sometimes outweighing risks and vice versa.
63. One might argue that it is better to err on the side of too many journals because journal editors will sometimes mistakenly reject a good article. Editorial judgment is not perfect. Having fewer journals will increase the likelihood of a good article being rejected, and patients could lose out on an improvement in therapy. On the other hand, it may be worse to publish a bad article than not to publish a good article. Bad information can lead to dangerous therapies being used and harm being caused to patients. Having fewer journals will decrease the likelihood of a bad article being published, and patients may end up better overall.
64. In other words, the conflict of interest is primarily a conflict for professors reading the journals, whose gratitude for the advertising dollars could influence their choice of textbooks for courses. The difference in advertising for academic journals in other fields probably reflects the fact that they do not have the same opportunities for industry funding as do medical journals. Nevertheless, the important point is that these other fields seemingly are able to publish enough of their fields' research without relying on the same kind of industry funding as received by medical journals.
65. See J.P. Kassirer, Letter, "Pharmaceutical Advertising in the Journal," N. Engl. J. Med., 327 (1992): 1689.
66. See id.
67. See A. Zuger, "After Bad Year for A.M.A., Doctors Debate Its Prognosis," New York Times, Dec. 2, 1997, at F3.
68. See P. Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982): at 299-310, 367-70.
69. See Editorial, "The A.M.A. - Deja Vu, Again," New York Times, May 29, 1994, 4-10.
70. See R. Pear, "Inquiry Criticizes A.M.A. Backing of Abortion Procedure Ban," New York Times, Dec. 4, 1998, at A27.
71. See G. Collins, "A.M.A. Seeks to Dismantle Sunbeam Deal," New York Times, Aug. 22, 1997, at D2.
72. See American Medical Association, SmokeLess States Tobacco Use Prevention Program (visited July 7, 1999) 〈http:// www.ama-assn.org/special/aos/tobacco/main.htm〉.