The BC Supreme Court decision in Sobeys West Inc. v. College of Pharmacists of British Columbia has found that the ban on pharmacy inducements and incentives (such as loyalty points) by the BC College of Pharmacists is unreasonable and outside of the scope of authority of the College. The College had enacted bylaws that banned the granting of incentives in conjunction with the provision of prescription sales or other pharmacy services. The ban was absolute, and made only limited exceptions for pharmacies to provide free parking or delivery, or to accept credit cards with attached incentive programs. The judge’s reasons for finding unreasonableness centred primarily on the bylaws being too broad for their proposed purpose.
The court began by recognizing that as a self-regulating body, the College of Pharmacists draws its authority from statute. Any bylaws it puts into effect must be in line with the purposes for which it was established. The court acknowledged that the College had a duty to regulate the activities of pharmacies and pharmacists to protect the public under the Health Professions Act. The court recognized that the bylaws were subject to a test of whether they were reasonable in carrying out the College’s mandate. The court also accepted the 5 potential harms as articulated by the College that the banning of inducements was meant to address.
- The use of “bonus days” where on certain days, a multiple of the usual reward would be given for purchases was thought to potentially cause an unmanageable increase in workload for on-duty pharmacists which could increase the likelihood for them to make errors in filling prescriptions;
- Bonus days might encourage a customer to defer filling a needed prescription until the next bonus day;
- Incentive programs could cause customers to repeatedly transfer their prescriptions from one pharmacy to another, thus undermining their continuity of care;
- Incentive programs could encourage customers to procure more drugs than required in order to obtain the incentive reward; and
- The need for a pharmacist to explain the incentive program reduces the time available for pharmacists to counsel customers on medication therapy.
Reasonableness of a regulatory body’s bylaws is highly context-specific, and the court stated that it would accept a range of reasonable alternatives from the College to address the above concerns. However, an important consideration in assessing the reasonableness of the bylaws is the level of evidence supporting the bylaws and — where there was little or low quality evidence proffered — whether the bylaws were therefore overbroad and failed to address competing public concerns, such as reducing the burden of prescription drug costs. (Loyalty point programs have the net effect of reducing the overall burden of prescription drug costs, even if they do not lower prices directly.) It was not enough that the College held a bona fide reasonable belief that there is some risk of harm to the public or to the standards of the profession. An outright ban that fails to balance patient health and safety with the need for reducing prescription drug cost burdens, especially in the absence of direct evidence of harm, would fail the reasonableness test.
Since Ontario has had a similar ban in place for 10 years, one might expect the College to be able to produce evidence of patient harms in the province because it lacked such a policy over the same time period. Admittedly, demonstrating actual harm to a patient from an incentive program is difficult, and the court was careful to state that the mere absence of any evidence that such programs were harmful did not mean that they weren’t. Moreover, the College does have the mandate to enact proactive bylaws to limit the risk of harm to the public even in the absence of such evidence. The lack of evidence likely constrains the range of reasonable alternatives available to the College.
The court proceeded to discuss how an outright ban was unreasonable in light of the College’s 5 objectives. First, Sobeys had already agreed to eliminate bonus day offerings, and the court seemed to suggest that a ban on bonus days (similar to the one provided in Manitoba) would not be unreasonable. Second, a ban on incentives for prescription transfers would address the concerns arising from the third objective. And third, the fifth objective regarding the time available for counseling patients on their medications was already addressed by the College’s ethical code and standards of practice. Moreover, the court considered the breadth of the ban in light of other mechanisms in place to prohibit the use of incentives for vulnerable populations, such as those receiving methadone treatment or those covered by the provincial drug plan.
Perhaps the most problematic issue was the court’s addressing of the fourth objective. To begin, the court could find no reason that cash-paying customers would be incentivized to obtain more drugs than necessary simply on the basis of incentives provided by the pharmacy. Then, for prescriptions paid for by third party insurers, the court pointed to other safeguards — namely, the quantity authorized by the prescription and the directions for use — which ought to ensure the proper use of medication. Electronic health records (in BC, PharmaNet) would also help pharmacists to ensure patients were refilling their prescriptions at the appropriate time intervals and to dispense only when appropriate. Beyond the practical challenges, the court ignores the important implication for “PRN” medications — medications prescribed and used by patients on an as needed basis. Such prescriptions may be filled at regular intervals even if the patient is not using them, simply to obtain the incentives of loyalty points that are subsidized by third-party insurers. In such cases, a real and rational connection between patient behaviours and incentive programs is demonstrable, and raises significant public health concerns such as medication hoarding inside the home (which may pose a danger, for example, to children or seniors with visual impairment); medication misuse, abuse and diversion (given that many prn medications can be opioid narcotics); nationwide prescription drug shortages; and the increasing problem of pharmaceutical waste, which patients may or may not dispose of appropriately and end up in landfills.
Even if these concerns are considered, an outright ban may still be considered unreasonable. Instead, limiting loyalty points to be awarded only in proportion to the amounts that patients pay out-of-pocket would bring the incentives in line with cash-paying customers. This would also keep in line with the court’s desire to ensure that patients are able to reduce the prescription drug cost burden in proportion to their out-of-pocket contribution. The court left open to the College the right to amend the bylaws and address the court’s concerns.
There are two additional points of interest to consider in the evolving pharmacy practice environment. First, the College did not propose to ban incentives on the sale of over-the-counter products. That distinction seems arbitrary, but was not raised by either side in reference to the objectives of the bylaws. It would seem that the potential patient harms apply equally for both drug categories. Moreover, if the College chooses to amend the bylaws to limit incentive programs to the portion a patient pays out-of-pocket, it is bolstered by having a consistent approach across all drug sales from the pharmacy.
Second, and more importantly, the initiatives by both the BC and Alberta colleges to ban pharmacy inducements demonstrates a deepening conflict within the Colleges — a conflict between regulating prescription drug sales by pharmacies and the expansion of professional services offered by pharmacists. Unfortunately, numerous times throughout the BC Board members’ affidavits, the award of loyalty points by pharmacies was equated to the award of those points by pharmacists, and therefore contrary to their code of ethics. But it is pharmacists, not pharmacies or pharmacy operators, that are required to uphold a code of professional ethics. Pharmacies are regulated only to the extent that their commercial practices do not risk patient health. The failure of the Colleges to distinguish between the two diverging entities in modern pharmacy practice — an artifact, perhaps, reflecting the environment in which the Colleges were established — does not bode well for those pharmacists who hope to see their practices emerge from behind the dispensary. Pharmacists should be loath to the conflation of their professional services with the sales and value-added services of pharmacy operators. It is a pharmacist’s professional services that ought to conflict with a pharmacist’s professional code of ethics and which threatens the standards, and the Colleges’ confusion of the two — here, and in the context of pharmacy ownership requirements — only serves to emphasize the role of the pharmacist as intimately connected to the sale of drug products in the eyes of the public.