A front-page article highlights a provision in the fiscal cliff bill that gives the drug company Amgen two additional years to sell the medicine Sensipar under less restrictive Medicare reimbursement rules. It's a useful article in that it shines a light on this obscure provision and how it became law. But it has a few flaws.
"The bill gives Amgen an additional two years to sell Sensipar without government controls," the article says. That inaccurately suggests that no government controls at all apply. There are still plenty of government controls — the sales are subject to all the usual anti-fraud provisions, the FDA's rules, and Medicare's rules. They just aren't subject to inclusion in the new bundled payment system for kidney dialysis.
Second, the article includes as context: "On Dec. 19, as Congressional negotiations over the fiscal bill reached a frenzy, Amgen pleaded guilty to marketing one of its anti-anemia drugs, Aranesp, illegally. It agreed to pay criminal and civil penalties totaling $762 million, a record settlement for a biotechnology company, according to the Justice Department."
The text of the article does not specify how this marketing was done "illegally." Readers might imagine bribes or kickbacks, or selling the drug in a way that intentionally harmed patients. In fact the issue was not any of those things, but rather off-label use, where Richard Epstein and Andrew Grove, among others, make a reasonable case that the laws are silly and should be reformed. Sure, companies are obliged to follow laws even if the laws are counterproductive and due for reform, but the Times throws these lines in in a way that looks simply designed to bolster the depiction of Amgen as some greedy villainous pharmaceutical company, without raising the issue of whether these off-label use restrictions make any sense.
Finally, the article fails to make the next logical leap, which is that a system that sets up the government as a big payer and authorizer of medical care almost inevitably breeds the sort of influence-peddling and backroom dealing described by the article. If the prices for drugs were set by competing retailers without a lot of government intervention, you'd wind up with something more like the $4 generic drugs available at Walmart and Target, and individuals, in consultation with their doctors, can decide whether to purchase and consume the drugs. But when it's Medicare or the FDA deciding whether to pay and how much for the whole country, the stakes are so high that it becomes a rational economic decision for the drug company to start making political contributions and hiring congressional aides-turned lobbyists.
One can argue that an article highlighting a particular legislative provision isn't the place for the Times to digress into FDA reform or explanations (rather than examples) of how big government breeds corruption. Maybe so, but what explanatory context there is in the article tends to promote one story line — drug companies are law-breakers — rather that the alternative story line, which is that silly laws and centralized government decision making breed corruption.