Massachusetts Loosens Gift Ban Law

On July 8, 2012, as part of the 2013 budget process, Governor Deval Patrick signed into law a bill amending the Massachusetts Pharmaceutical and Medical Device Gift Ban Law (M.G.L. § 111N, the Gift Ban Law), one of the most prohibitive laws of its kind in the nation. The amendments will modestly loosen the restrictions on pharmaceutical and medical device companies in their interactions with Massachusetts licensed health care providers, and bring the Commonwealth's law into conformance with the Federal Sunshine Act's preemption provisions. The 2013 Massachusetts budget, and as a result the amendments to the Gift Ban Law, became effective July 1, 2012.

The Gift Ban Law was passed in 2008, and has been controversial ever since, as evidenced by multiple attempts by the legislature to repeal the law. It is significantly more restrictive than the federal provisions passed as part of the 2010 health care reform law (42 U.S.C. § 1320a-7h), which do not include a gift or other ban but rather include broad manufacturer reporting requirements for payments or transfers of value in excess of $10 (or, if less than $10, aggregated to $100 per calendar year). The federal Centers for Medicare and Medicaid Services (CMS) have issued proposed regulations to implement these new federal provisions, but have not yet finalized them.

Massachusetts now allows payment for "modest meals." Most notably, the recent revision to the Massachusetts law loosens the restriction on providing meals to health care practitioners outside of the practitioner's office or a hospital setting. The statute now permits "the provision of or payment for modest meals and refreshments in connection with non-CME educational presentations for the purpose of educating and informing health care practitioners about the benefits, risks and appropriate uses of prescription drugs or medical devices, disease states or other scientific information, provided that such presentations occur in a venue and manner conducive to informational communication." This amendment now allows pharmaceutical and medical device companies to pay for practitioners' meals at restaurants. This amendment was supported by industries far afield from pharmaceutical and medical device companies; the Massachusetts Restaurant Association and the Greater Boston Convention and Visitors Bureau also supported the amendment, arguing that the ban costs millions in foregone revenue.

The new allowance for restaurant meals is not wholly...