WV - Rep. Iaquita (D) introduced H.B. 2124, which would outlaw unsolicited or bulk electronic mail messages from a computer located in West Virginia to an electronic mail address of a West Virginia resident. Because of the sweeping nature of this bill, and the fact that it would implicate all e-mails (not just commercial ones), we will register our concerns with Rep. Iaquita and relevant legislative leaders in West Virginia to ensure that H.B. 2124 does not become law.
IL – Rep. Franks (D) introduced the Prescription Drug Ethical Marketing Act (H.B. 332), which would require every manufacturer and labeler that sells prescription drugs to disclose to the Director of Public Health the value, nature and purpose of any gift valued over $25 provided in connection with detailing or promotional or other marketing activities, directly or through pharmaceutical marketers, to any healthcare professional. Though the Act requires reporting, it does not require the release of any healthcare professional’s personally identifiable information. Although MRA will contact the sponsor to discuss how this matter impacts survey and opinion research, the Act should not directly inhibit survey research with healthcare professionals in Illinois.
MD – Sen. Kelley (D) introduced S.B. 196, which would require pharmaceutical manufacturers to disclose to the Maryland Health Care Commission all payments made to physicians for speeches, consulting or conducting research. The report, which will be made public, will include the last name of the physicians who received payments and the names of the manufacturers who made them. MRA considers this legislation a high priority since it explicitly includes survey and opinion research incentives, and is opening discussions with Sen. Kelley and her staff.
MS - Rep. Lane (D) introduced H.B. 811, which would require pharmaceutical manufacturing companies to disclose annually to the state department of health the value, nature and purpose of any gift provided in connection with promotional or other marketing activities, directly or through pharmaceutical marketers, to any physician, nurse practitioner or immediate family member. A pharmaceutical marketer is defined as “a person who, while employed by or under contract to represent a pharmaceutical manufacturing company, engages in pharmaceutical detailing, promotional activities or other marketing or prescription drugs to any physician or nurse practitioner.” The bill explicitly would require the disclosure of the name of the recipient. H.B. 811 would exempt “food and beverages for immediate consumption up to a value of $10 in the aggregate during the calendar year.” The bill further provides that, if a physician is receiving a gift from a pharmaceutical manufacturer pursuant to a contract, that physician must disclose this fact to his patients. Failure to disclose the contract can result in a license revocation or suspension. H.B. 811 imposes the most stringent standards MRA has yet encountered in any state, and is taking appropriate measures to address it.
NM - Sen. Feldman (D) introduced S.B. 99, which would require an annual report from manufacturers to the attorney general including, “the value, nature and purpose of any gift, fee, payment, subsidy or other economic benefit valued over $25 that is provided [to a healthcare professional] in connection with healthcare supply marketing.” Healthcare supply marketing is defined as “pharmaceutical detailing, biotechnology, medical device or supply promotion or other marketing and promotional activities provided to a physician, hospital, nursing home, pharmacist, health benefit plan administrator or other person authorized to prescribe, dispense or purchase prescription drugs, biotechnology, medical devices or medical supplies in the state by a person employed by or under contract to a manufacturers or labelers of prescription drugs, biotechnology, medical devices or medical supplies.” The report does not require a specific release of physician identifiable information. Nevertheless, given the current climate for physician incentive laws, MRA will educate Sen. Feldman on how even seemingly innocuous physician gift legislation impacts the survey and opinion research profession.
OR - Rep. Greenlick (D) introduced H.B. 2468, which would require drug manufacturers to file an annual report with the State Board of Pharmacy listing compensation (gifts) totaling $100 or more paid to physicians and nurse practitioners. The legislation does not define drug manufacturers, but requires the report to include: the nature of the compensation, the value of the compensation and the identity of the prescribing professional. MRA will work with Rep. Greenlick to clarify whether or not H.B. 2468 would include indirect payments (such as research incentives).
VT - Sen. Mullin (R) introduced S.B. 48, which would stiffen and expand the existing reporting requirements for physician gifts. S.B. 48 would require annual disclosure by manufacturers to the office of the attorney general the value, nature, purpose and recipient information for all gifts of any value given to healthcare professionals that are connected to the detailing, promotional, or other marketing activities by the company, directly or through its marketers. Marketing is defined to “include promotion, detailing or any activity that is intended to be used or is used to influence sales or the market share of a prescription drug, to market prescribed products to patients, or to evaluate the effectiveness of a professional pharmaceutical detailing task force. The term does not include the actions of a wholesale drug distributor or the distributor’s representative who promotes or otherwise markets the services of the wholesale drug distributor in connection with a prescription drug.” The recipient information required includes: “the name of the recipient, the recipient’s address, the recipient’s credential’s, the recipient’s institutional affiliation and the recipient’s state board or DEA numbers.” The data provided would be disclosed on a public Web site. S.B. 48 has explicit exemptions for: “payment to the sponsor of a significant educational, medical, scientific or policy-making conference or seminar, reasonable payment of the reasonable expenses of a professional who serves on the faculty of a bona fide educational, medical, scientific or policy-making conference or seminar, compensation for the substantial professional or consulting services of a healthcare professional in connection with a bona fide clinical trial, provided there is an explicit contract with specific deliverables, which are restricted to scientific issues, not marketing efforts, samples of prescribed products, peer-reviewed academic, scientific or clinical articles or journals, scholarship for medical students and prescription drug rebates and discounts.” S.B. 48, however, would allow for the defense of a trade secret in order to limit public access to the information provided. This legislation would drastically change the scope of Vermont law. S.B. 48 would also impose a burden on survey and opinion researchers to have knowledge about their clients’ intent in using survey related data. MRA considers this matter a high priority and will proceed accordingly.
Personally Identifiable Information
NY - Assembly Member Pheffer (D) introduced A.B. 272, which would expand the state’s definition of personally identifiable information to include electronic mail addresses and would prohibit the sale “or lease [of] any consumer’s electronic mail address and other personal identifying information” obtained online “without providing the consumer with a clear and conspicuous notice of the collection of the consumer’s electronic mail address and any other personal identifying information and the ability to opt out of the sale or lease” of that information. “Personally identifiable information” includes, but is not limited to, “a person’s social security number, date of birth, current and prior addresses and mother’s maiden name.” A.B. 272 applies to all persons and businesses, including survey and opinion researchers who collect, buy, sell or rent such data.
Congress – The American Recovery and Reinvestment Act of 2009 (H.R. 1), which the President signed into law on Feb. 17, massively expanded the scope and impact of the HIPAA healthcare privacy law under the guise of improving the adoption of health information technology (IT).
Congress – Rep. Burgess (R-TX) introduced the Health Information Technology Promotion Act (H.R. 1031), which would promote the use of healthcare IT. Because the legislation would not noticeably alter the scope or impact of HIPAA, H.R. 1031 would have minimal impact on the research profession.
OK – Rep. Tomei (D) introduced H.B. 2680 (an identical companion to S.B. 379), which would prohibit “prescription information” that contains patient and prescriber “identifiable data” to be “licensed, transferred, used or sold by any pharmacy benefits manager, insurance company, electronic transmission intermediary, retail, mail order or Internet pharmacy or other similar entity for any commercial purpose.” A “commercial purpose” means “activities including, but not limited to, advertising, marketing, promotion or any other activity that could be used to influence sales or market share of a pharmaceutical product, influence or evaluate the prescribing behavior of an individual healthcare professional, or evaluate the effectiveness of a professional pharmaceutical detailing sales force.” Due to the broad definition of “commercial purpose,” survey and opinion research practices may be included. MRA will seek an explicit exemption for research from the restrictions of both H.B. 2680 and S.B. 379.
United Kingdom – The United Kingdom’s Information Commissioner's Office (ICO) published a code of practice on creating privacy policies. The ICO intends it to serve as a model for organizations creating or revising their own policies, because too many currently use excessive legal jargon are drafted to protect the organization, rather than to inform the public. The draft code is open for comment until April 3.
IL – Rep. Verschoore (D) introduced H.B. 1090, which would amend the Automatic Telephone Dialers Act by requiring that each telephone call made by an autodialer disclose at the beginning of a prerecorded message “the identity of the business, individual or other entity that is responsible for initiating the call.” Illinois does not define “autodialer,” but refers to the use of prerecorded messages, which could implicate automated research technology, like IVR. Sponsorship disclosure can inject bias into survey and opinion research, so MRA will seek an exemption for research purposes.
Call Center Disclosure
AZ - Sen. Garcia (D) introduced S.B. 1222, aimed at outsourcing, would require that any person who receives a telephone call from or places a telephone call to a consumer sales call center or a consumer service call center (for survey and opinion research purposes), on request, has a right to speak with a qualified employee of the company or government agency with whom the person is doing business. A consumer service call center is defined as “an entity whose primary purpose includes the initiating or receiving of telephonic communications on behalf of any person for the person of providing or receiving services or information necessary in connection with providing services or benefits.” The consumer service call center employee would also have to disclose at the beginning of the call: the street address, including city and state and country from which the employee is making the call and the principal’s address location, the legal name of the employer and the purpose of the call. S.B. 1222 would also outlaw sending a person’s financial, credit or identifying information to a foreign country without that person’s consent. Sponsorship disclosure can inject bias into survey and opinion research, so MRA will seek an exemption for research purposes.
WV - Rep. Caputo (D) introduced H.B. 2495, aimed at outsourcing, would require that any person who receives a telephone call from or places a telephone call to a customer sales call center or a customer service call center to disclose information requested from the consumer. For survey and opinion research purposes, a customer service call center is defined as “an entity whose primary purpose includes initiating or receiving of telephone communications on behalf of any person for the purposes of providing or receiving services or information necessary in connection with providing services or other benefits.” The broad interpretations of a “customer service call center” would require that any person who receives a telephone call from or places a telephone call to the center has a right to: “(1) know the identification of the city, state and country where the customer service employee is located, (2) know the name or registered alias of the customer services employee, (3) know the name of the employer of the person with whom the person is speaking, and (4) speak to a qualified employee of the company or government agency the person is doing business with.” H.B. 2495 would further provide that customer consent is required in order to send a customer’s financial, credit or identifying information to a foreign country. In past legislative sessions, outsourcing and call center disclosure was a main topic in state legislatures. Sponsorship disclosure can inject bias into survey and opinion research, so MRA will seek an exemption for research purposes.
KY - The House Committee on Elections, Constitutional Amendments and Intergovernmental Affairs (Reps. Owens-D, Fischer-R, Weston-D, Bratcher-R, Clark-D, Comer-R, Harmon-R, Henley-D and Marzian-D) amended H.B.18, sponsored by Rep. Higdon (R), by adding prerecorded political messages as a form of a telephone solicitation if the “residential number for that telephone appears in the current publication of the national Do Not Call Registry maintained by the United States Federal Trade Commission.” A prerecorded political message is broadly defined to include a message by “any person when the content of the message clearly or implicitly advocates the success or defeat of any political party, measure or person at any election, or contains information about any candidate or political party.” Since H.B.18 implicates a prerecorded political message that “contains information about any candidate or political party,” this legislation could require researchers conducting automated political polls to scrub against the national Do Not Call Registry. Because of this overly broad definition, MRA will seek an explicit exemption for automated political polls from H.B.18.
MI - Sen. Hardiman (R) introduced S.B. 12, which would amend the Michigan campaign finance act to require agents acting on behalf of a candidate or committee making any “automated telephone communication” that relates to a election, a candidate or a ballot question, to disclose the identity of the person paying for the communication and state a disclaimer as to whether or not the communication is authorized by a candidate committee. A person that is not a committee that makes a communication for a candidate would have to disclose to the Secretary of State: “the identity of the person, the address and telephone number where the person can be contacted during ordinary business hours and the name of each candidate or committee for which the person has made a communication.” Because S.B. 12 exempts a call that "does not support or oppose a ballot question or candidate by name or clear inference", this bill should have minimal impact on the research profession."
MO - Rep. Swinger (D) has introduced H.B. 319, which amends the definition of telephone solicitation under the state’s telemarketing no-call list to explicitly include “any voice communication over a telephone line through the use of ADAD equipment for the purpose of endorsing a political candidate, requesting financial support or a vote for a political candidate or conducting polling regarding a political candidate notwithstanding whether the data obtained from the polling is to be analyzed or discarded.” The inclusion of legitimate research calls in a do not call registry would create a dangerous precedent, so MRA will work to amend or kill H.B. 319.
MS - Rep. Reynolds (D) introduced H.B. 650, which would prohibit “push polls.” The bill states, “no person shall use a telemarketing technique in which a telephone call, text message, e-mail, cell phone or any form of communication is used to disseminate political information prohibited…under the guise of taking a poll to determine how the information may affect a voter’s preference for a particular candidate, with the intent to distribute campaign propaganda while purporting to conduct a legitimate public opinion poll.” MRA endorses H.B. 650 and will be working with Rep. Reynolds to refine the bill and pass it into law.
Congress – The President signed American Recovery and Reinvestment Act of 2009 (H.R. 1) into law on February 17. Thanks to the aggressive lobbying of MRA, H.R. 1 includes $1 billion in immediate funding for the decennial Census. This will help the Census Bureau: hire more census takers for door-to-door Non-Response Follow-Up visits; open more Local Census Offices in hard-to-count areas; expand paid advertising; and hire additional Partnership Specialists. MRA also appealed to the White House last month to immediately nominate a new Director of the Bureau so that preparations for Census 2010 are not impeded.
Telephone Solicitation/Do Not Call
AK - Rep. Chenault (R) introduced H.B.93, which would amend the definition of a telephone solicitation under the Alaska Unfair Trade Practices and Consumer Protection Act to include calls on cellular and mobile telephones for sales related purposes. Calls for survey and opinion research are explicitly exempt from the Act.