Toronto Star

Province still probing kickback scheme

Two Costco pharmacy directors admitted to profession­al misconduct

- JESSE MCLEAN INVESTIGAT­IVE REPORTER

The three Costco Canada executives went to meet a senior official with Ontario’s Ministry of Health. It was Sept. 1, 2015, and the company was bracing for a possible storm.

A complaint had been filed alleging the retail chain pressured a generic drug company to pay illegal kickbacks in exchange for getting its prescripti­on products stocked on Costco pharmacy shelves. The alleged demand had been captured in a secretly recorded phone conversati­on.

In meeting with Ontario’s assistant deputy minister of health, the three Costco vicepresid­ents wanted to know if the province thought the payments it received from drug makers ran afoul of the law.

Three years later, the province still has not come out with an answer.

In the meantime, two Costco pharmacy directors admitted to a pharmacist regulatory college that they committed profession­al misconduct for soliciting payments that could reasonably be seen as unlawful kickbacks, and were hit with a modest fine.

Still, Ontario’s Health Ministry, which can punish companies that break its anti-kickback laws, remains mostly silent, saying only that it is investigat­ing.

The province’s inaction on a case where the evidence of wrongdoing appears “clear cut” sends a message to other pharmacies and drug manufactur­ers that the rules can be flouted, said Chris MacDonald, a business ethics professor at Ryerson University.

“If you don’t enforce it, you’re just engenderin­g disrespect for the law,” he said. “A lot of the investigat­ive work has been done.”

The Ministry of Health would not comment on the investigat­ion, which is being led by the province’s Forensic Investigat­ion Team. Costco also refused to comment on the probe.

It’s illegal in Ontario for drug companies to give direct or indirect incentives to induce a pharmacy to stock their generic drug over a competitor’s. These kickbacks are known as rebates, which the province has said artificial­ly inflate the prices insurers, including Ontario drug programs, and patients pay for their medication­s.

Costco was charging drug makers for “advertisin­g services,” which included printing companies’ logos on clinic handouts and inside a magazine published by the retailer.

But the payments were just rebates that had been “renamed” in an attempt to circumvent the law, alleged Tony Gagliese, a former sales rep for the generic drug maker Ranbaxy. It was Gagliese who complained to the province and the College of Pharmacist­s about Costco’s demands for payments for “clinic support or marketing initiative­s.” As evidence, Gagliese had a recorded phone conversati­on of a Costco pharmacy director explaining to him how much Ranbaxy would have to pay in order to “greatly reduce the likelihood of somebody eating your business.”

In August 2015, he filed complaints with the College of Pharmacist­s and the office of the assistant deputy health minister, who is also the executive officer of Ontario’s public drug programs and in charge of enforcing the anti-rebate provisions.

Within a few months, Ministry of Health agents were at Costco’s headquarte­rs, auditing all the major payments the retailer had received from drug manufactur­ers over a three-year period, according to a government email obtained by the Star.

However, the province at the time did not intend to pursue any penalties against Costco, according to a source involved in the government’s decision making on the case.

The province was already negotiatin­g with drug manufactur­ers to lower the price of certain popular generic drugs. A price drop would shrink profits for the companies — and lower their motivation to use rebates to get their drugs on pharmacy shelves, the source said. Driving “the cost lower to make less incentive for kickbacks” was seen as a more practical solution than playing “whack-a-mole” trying to stomp out new ways the industry may circumvent anti-rebate laws, the source said.

The province decided to let the College of Pharmacist­s seek formal punishment­s against the two pharmacist­s running Costco’s pharmacies, the source said. The regulatory college charged Joseph Hanna and Lawrence Varga for allegedly accepting rebates from Ranbaxy and four other drug makers.

As part of their defence, Hanna and Varga’s lawyer argued that the regulator was unjustly targeting a lawful practice that was “widespread within the industry,” according to submission­s made at the disciplina­ry hearing and obtained exclusivel­y by the Star. To bolster his case, the lawyer named four other pharmacy chains that he said billed a drug maker for sponsoring clinics: Pharma-Choice, Guardian, Rexall and Walmart.

Making a finding that an advertisin­g payment “is a prohibited rebate and therefore that its acceptance by Costco is an act of profession­al misconduct … would have significan­t ramificati­ons on pharmacies throughout Ontario,” Costco’s lawyer warned in a September 2016 submission marked “Confidenti­al.”

Spokespers­ons for Walmart, Rexall and Guardian said they comply with Ontario’s laws. Pharma-Choice did not respond to questions.

In January 2018, Hanna and Varga admitted to profession­al misconduct for soliciting $1.26 million from Ranbaxy that could reasonably be regarded as a kickback. Costco’s lawyer told the disciplina­ry hearing that the pharmacist­s believed the advertisin­g fees they charged the drug maker were legal.

In the end, each man was fined $20,000 and the charges concerning alleged payments from four other drug makers were withdrawn.

The penalty imposed by the college “was so trivial, such a slap on the wrist,” said Ryerson University’s MacDonald, that the government should pursue stiffer sanctions against Costco.

“It’s to protect the public trust in the system,” he said.

Gagliese said he has grown frustrated waiting for the government to act.

“Who is protecting the taxpayers?” Gagliese said. “There is a pharmacy chain that’s admitted to breaking the law, (and) the government hasn’t stepped in and done anything about it.”

 ??  ?? The Ministry of Health refuses to comment about the ongoing investigat­ion into Costco pharmacies allegedly courting kickbacks from drug manufactur­ers.
The Ministry of Health refuses to comment about the ongoing investigat­ion into Costco pharmacies allegedly courting kickbacks from drug manufactur­ers.
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