On Tuesday, January 30, 1962, Arthur Sackler, responsible for devising the best strategies for many of the corporate executives who had previously testified, was himself in the spotlight. He was joined by McAdams president Dr. DeForest Ely, a Johns Hopkins–trained physician who had joined the agency in 1947, and Robert Barnard, a patent and trademark litigator and longtime friend.1 I 2
Arthur seemed confident as he settled in front of the subcommittee. The senators might have been more impressed with his demeanor had they known that the previous month, as revealed in documents obtained by the author, two special agents from the New York FBI field office had visited Sackler unexpectedly at the McAdams agency. They questioned him about his friendship with the fugitive Soviet spies Alfred Stern and Martha Dodd.3 Sackler had nearly four years to prepare his answers since the couple had fled to Prague.4
He downplayed to the agents his relationship with the Sterns. As for business, he changed the story and cast Alfred Stern as the one who had first reached out to him. He claimed that Stern had initiated the discussion about buying Schering before the Alien Property Custodian confiscated it. The agents wondered why Stern called Sackler instead of getting in touch with one of Schering’s directors or senior executives. In their memo to headquarters, they noted: “Sackler mentioned that as an expert in the pharmaceutical field he is frequently consulted regarding the mark[et]ing, financing and promotion of pharmaceutical firms.”5 They somehow failed to realize that the Sackler and Stern meeting about putting together an investor group to buy Schering took place in 1941. It was twenty-seven-year-old Sackler’s first job after completing his medical residency. He was an assistant to the chief of a four-person ad department. The agents, though, accepted his version.
Having convinced them that Stern sought his counsel in acquiring Schering, Sackler explained away their subsequent socializing—at their Central Park West co-op, summer home in Connecticut, and “a last minute” invitation to the Toscanini premiere—as all about business. When he spoke to Stern about buying another small pharma company in 1948, he insisted it was a brief conversation and only by telephone. What about the Sterns’ political leanings? Arthur professed to be clueless. To clinch how casually he knew the Americans now wanted as spies, when shown a photo of Martha Dodd, he hesitated before claiming he could not positively identify her. This virtuoso performance left the agents persuaded that Arthur’s connection to the Sterns was largely accidental and most likely innocent.II
Sackler was now prepared to repeat a convincing performance before Kefauver. He had carefully mapped out a strategy, first wanting to establish his own medical credentials and reputation. In documents he had provided to the subcommittee, there was a typed seven-page, single-spaced “bibliography.” It listed fifty-nine scholarly articles he had written, one under way, and a copy of his 1956 book, The Great Physiodynamic Therapies in Psychiatry, done with his brothers and Martí-Ibáñez.6 “A Brief Summary of Research Findings” was an attached sixty-page, two-part report extolling what he claimed he had anticipated and predicted before anyone else in “biologic psychiatry” and “physiology.”7 Sackler also attached letters from some medical luminaries who praised his work.8
His prepared statement emphasized his work as a “research psychiatrist” who “has never had anything to do with testing or marketing of any drugs for clients of McAdams or for any pharmaceutical company.”9 He downplayed the influence of the McAdams agency. It handled, he claimed, only $15 million annually in “good ethical pharmaceutical advertising [that] plays a positive role in advancing the health of the community.”10 That was less than 2 percent of the $750 million pharma spent annually on promotion. “The cost of advertising material which we handle for our clients comes to less than 5 cents per prescription dollar for the drugs.”11
Sackler emphasized that “no amount of money or promotional ingenuity can match demonstrated benefits for patients from good prescription drugs.” The free market would dispose of drugs that failed to deliver what they promised. He reminded the senators that “the American people are healthier, not sicker; our children have less disease, not more, our lifespan has increased, not decreased.”12
As for the subcommittee’s focus on drug prices, Sackler contended that the type of promotion he did—informing doctors about new drugs from his pharma clients—“reduce[s] the cost of medical care even as it helps save lives and prevent suffering.” Since the discovery of psychopharmaceutic drugs, he said, New York State spent $2.2 million on tranquilizers annually, while saving about $10 million in patient care and $170 million in new hospital construction. And just $16,000 in drugs to fight tuberculosis had saved New York City $16 million by converting sanitoriums to other uses.13 Sackler wrapped up by addressing Kefauver’s pending legislation. He believed it was unnecessary since the drug companies and ad agencies such as his had already voluntarily instituted everything the law proposed.14
Kefauver led off the questioning: what possible objection could there be to including a drug’s side effects in any printed ads? Sackler said it would “impose an undue economic hardship upon the little manufacturer who cannot afford the necessary space.”15
Herman Schwartz, the committee’s staff counsel, tried rattling Sackler’s cool demeanor. He brought up Upjohn’s corticosteroid, Medrol, on which Sackler had done a nationwide ad campaign. Arthur was responsible for reporting, producing, and distributing Scope Weekly, Upjohn’s in-house drug promotional that went to 175,000 physicians and all medical schools. Sackler earned $1.5 million annually just from Scope Weekly.16
The heart of the Medrol campaign was two side-by-side X-rays, the first labeled “Ulcerative Colitis” and the second “Ulcerative Colitis Following Treatment.” One California radiologist, on close inspection, suspected that the X-rays were of two different people. When he wrote to Upjohn he discovered that not only were the X-rays of different patients, but he learned that neither had taken Medrol.
What followed was a combative half hour. The more Arthur was pressed, the more obstinate he became.
The ad was not misleading, insisted Sackler. The first X-ray was of “an irreversible condition” so the second X-ray could not be the same person since “you cannot reverse an irreversible condition.”
That is why it is so misleading, countered Schwartz. The ad made it appear that Medrol cured the condition in six weeks.
Nowhere, Sackler argued, did the caption for the second X-ray claim, “Same patient as x-ray No. 1.” At no time did the ad say “before” and “after.” As for neither patient taking Medrol, Sackler said “It never said they did.” Any doctor would know they were different people, he claimed, and the doctor who complained was the only one who did so out of 140,000 physicians.17 The X-rays were only put into the ad as a “constructive service” to help inform physicians “of the total disease.… We were not with those x-rays trying to sell any medicine.”18
“You were trying to get the doctors to prescribe the medicine?” asked Kefauver.
“We are trying to get the doctors to have available additional basic material.”19
Sackler seemed irritated by and contemptuous of the questioning. He resented that the subcommittee did not have a single physician on staff. He told his attorneys that laymen could not understand the complexity of medical science and the finesse necessary to promote it.20 The often sharp back-and-forth was as much an exposé about Sackler’s “never admit a mistake” mind-set as it was about the flaws of what then passed as acceptable medical advertising practices.
Medrol had only been a warm-up for chief counsel Herman Schwartz. Next was MER/29, a cholesterol-lowering medication developed and patented by William S. Merrell, a small Cincinnati drug company and another McAdams client. Sackler and his team rolled out MER/29 with a million-dollar budget in March 1960.21 McAdams sent 100,000 copies of a booklet extolling MER/29 to doctors nationwide. An eight-page color ad ran in prominent medical journals, followed by a deluge of full-page ads and more direct mail. The message: MER/29 was the “first safe” and “nontoxic” drug that lowered cholesterol.22 Merrell’s detail men gave doctors a free 8mm movie that repeated the theme about MER/29’s innovative status. It was a hit, with more than 300,000 users in a year. In October 1961, the Mayo Clinic sent Merrell a report that two patients using the drug had developed cataracts.23 By December, eighteen months after the launch, the FDA required Merrell to send a “Dear Doctor” letter listing a page and a half of possible MER/29 side effects not previously reported; in addition to cataracts there were changes to reproductive organs, reduced adrenal gland function, severe dermatitis, and baldness, among others.24
As the number of adverse reactions piled up, the FDA subpoenaed Merrell’s internal files. It discovered the company had lied about MER/29’s success in animal testing. It had disposed of monkeys who died during the tests but listed them in the final report as having done well. Records of frequent incidents of gall bladder and liver damage, as well as dangerous weight loss, were either destroyed or omitted from the results submitted to the FDA for the drug’s approval. Merrell had also somehow persuaded a group of Cleveland Clinic physicians to postpone their scientific paper disclosing the drug’s “toxic side effects.”25 A week after the FDA had uncovered the evidence of Merrell’s fraud, the company withdrew the drug from the market.26 III 27
The committee now wanted to know when Sackler had learned about MER/29’s side effects. The McAdams promotional campaign had emphasized that “few toxic or serious side effects have been reported” in a prominent ad in the November 4, 1961, JAMA. Merrell knew by then that the FDA had ordered it to send a warning letter to doctors.
Sackler claimed that Merrell had not informed him until late October, and it was then too late to cancel or modify the JAMA ad. In any case, he said, he did not know what the big fuss was about.
That surprised the panel. Chief counsel Schwartz picked up the questioning. What about suppression of the adrenal gland function?
“A good jigger or a few jiggers of whisky may also reduce adrenocortical output,” Sackler replied.
What about the other side effects in the Merrell letter it was ordered to send to physicians?
“I do not believe that thinning of the hair is a toxic side effect,” he quipped. “I’d prefer thin hair to thick coronaries.”28 It was vintage Sackler, a bombastic demeanor mixed in with a dash of condescension (there was no clinical evidence the drug prevented thickening arteries).
“Cataracts are certainly a serious side effect,” Kefauver interrupted.
“There were four [cataract] cases in 300,000 patients,” countered Sackler. Three of those were because the dosage was too high, he claimed. It was possible that the other patient who developed cataracts was simply “a chance finding.”29
He reminded the subcommittee that he and his McAdams team did not write Merrell’s warning letter to doctors. If they had asked for his opinion, he would have told them to fight the FDA directive since it was unnecessary. “There is no therapy which is totally without side effects,” he said. Moreover, all the MER/29 ads he created had in small print: “Complete bibliography and prescription information available on request.”30
No matter what the committee threw at him, Sackler was unfazed. If he was unable to deflect an issue he stonewalled or grew ever more combative. He chided the Senate’s probe, “the whole thing isn’t relevant.”31 When confronted with some of his own memos the investigative staff had obtained, but that he had failed to produce in response to a subpoena, he complained that the committee was trying to trap him instead of getting to the truth. Still, he offered to “testify on this blindfolded, so to speak” while complaining he had not been shown “this material until this morning.”
What about the many documented instances the committee had compiled of misrepresentations and material omissions in the sales pitches by detail men? Sackler was adamant that “we cannot be responsible” for promotion “material which we do not prepare.… We act as agents. I could not in any way testify as to what a drug company does with its detail men unless I was preparing their material.”32 He assured the subcommittee he had nothing to do with any improper strategies for the detail squads.
It seemed the chief counsel might have a “gotcha-moment” when he produced a seventeen-page memo of opposition research prepared by Pfizer, one of Sackler’s main clients. The document, filled with negative data about a competitor’s drug, was distributed to the detail men to use as needed to push doctors away from the rival medication and to instead prescribe the Pfizer brand. The subcommittee had uncovered letters from Sackler to Bill Frohlich discussing the memo in detail.33 The American Medical Association and JAMA, among others, had strict prohibitions against using derogatory information about one drug to promote another. Arthur did not miss a beat.
“Someone sent this material to me, and I simply sent it back with a comment. We have nothing to do with it,” he insisted.34
At another point, asked whether McAdams had suppressed the generic drug names by listing them in small fonts, he said, “Personally, I don’t have any objection to 8 point type.”35 Shown ads in which McAdams had omitted the generic names, he claimed those were “mechanical” errors by a low-level employee. “We had the fewest [errors] of all agencies.”36 Confronted with letters from eight doctors who said that McAdams had used their names as endorsements in ads although they had expressly refused permission, Sackler blamed an employee who “is no longer with William Douglas McAdams.”37
Only during the last hour of his testimony did Sackler lose his defiant stance. It involved questioning about whether he had violated the FDA’s ironclad ban on “direct to consumers” ads. The subcommittee did not know about how Arthur circumvented the FDA prohibition in his celebrated Librium campaign. They did, however, have incriminating evidence about two other promotions they suspected were Sackler’s handiwork. The first was Gray’s Compound, the streamlined name Arthur had picked for Purdue Frederick’s top selling Gray’s Glycerine Tonic Compound. Health Horizons, a general circulation consumer health magazine, had run 178 clippings promoting Gray’s Compound.
“Is Health Horizons an operation of McAdams?” asked Kefauver.
Sackler picked his words with the precision of an attorney. “Not to my knowledge, sir. I do not believe so.”38
The chief counsel said the committee had determined that Health Horizons was owned by Medical and Science Communication Associates. That company had placed prepackaged ads disguised to look as if they were editorial stories into 171 newspapers and magazines about another Purdue product, the laxative Senokot. It seemed suspicious that its office was at the same midtown Manhattan address as the McAdams agency.39 Kefauver pulled a file folder overflowing with documents from his briefcase. He flipped through some pages before holding one near the microphone.
“Is that company yours?” Kefauver asked.
Sackler said, “We used their services,” but dodged a direct answer:
“Senator, I have never had any stock in Medical Science Communications Associates.”
“Was it a department [of yours]?” Kefauver asked.
“No sir, it was not.… And I was never an officer.”
They were an independent company that paid for their own office space, Sackler averred, and whatever they did for drug ads or promotion, he played no role in it.
“Was this done for you?”
“No sir.… I would never approve the utilization of mats such as these in respect to the dissemination of prescription product information.… They were not clients of William Douglas McAdams, to the best of my knowledge.”40 Sackler became agitated when pressed. His voice rose.
“I would like to make it very clear.… Everything I have ever heard is that it is a violation of all the codes, it is unethical and everything else to advertise to the lay public, the idea being that the doctor ought to make the decision and that the patient should not be getting information so that he goes to the doctor and insist on getting the drug. And furthermore, these things don’t set out the side effects, and the paper that takes it usually doesn’t know that it is really advertising, it thinks it is just from a news service. And then the editors who might print an article of that sort of thing is just coming from some foundation or some organization of that sort, too.”41
So, if that was true, why had Sackler incorporated in 1949 another company, Medical Pharmaceutical Information Bureau? It was dedicated to presenting drug research and information to journalists and editors.
“In the late 1940s we believed that a good information service would be valuable.”
He claimed that when he realized the company sent out mats, he told the firm’s president that “I personally felt the practice should stop.” Sackler said he sold his interest in 1951 and declared since then he had “held no stock of any kind, directly or indirectly.”
Kefauver again tried pinning him down about whether he had approved mats for his pharma clients.
“To the best of my knowledge, Senator, I cannot recall.”
That was uncharacteristically vague for a man who prided himself on blunt and direct answers.
The Senate staff knew that Medical Science Communications Associates was owned by Arthur’s ex-wife, Else, and Helen Haberman, the highest-ranking female executive at McAdams (the duo later merged it into Medical and Science Communications Development).42 The obfuscation was vintage Sackler. He hid his own role and equity stake under different names, as he had done time and again in ventures with Bill Frohlich, Félix Martí-Ibáñez, and his brothers.43
In wrapping up his testimony, Sackler told the senators that the proposed legislation was not necessary. The government should instead stop overregulating the pharmaceutical industry and allow it to police itself. As Sackler prepared to leave, Nebraska’s outspoken Roman Hruska apologized for the accusatory questioning. It was a shame, he said, that his colleagues had tried “to paint the worst possible picture” of drug advertising.44
Arthur was confident he had done a great job. Some of his friends were not as convinced. Bill Frohlich, who was scheduled to testify the following day, changed his mind after he learned about the aggressive questioning. He got a doctor to send the committee a letter by messenger that he had “an eye disorder which might be aggravated by his appearance, and that he is somewhere in Germany.”
I. Preparation for his Senate testimony had not prevented Sackler from indulging new time-consuming pharma-related opportunities. He encouraged another of his attorneys, Stanley Wolder, to form a journal about the crossroads of medical science and law. The author discovered that five months after Sackler’s Senate appearance, the International Academy of Law & Science was incorporated in New York. Wolder was a director, and the editor of its journal, Lex et Scientia. Arthur convinced a number of his own pharma clients to hire Wolder as a consultant.
II. The agents were also initially concerned that Sackler had hired a former State Department employee, Mary Jane Keeney, dismissed as a security risk during the McCarthy hearings. The FBI had opened an espionage investigation into her husband but never built a case strong enough to arrest him.
III. Injured patients filed more than 1,500 civil suits against Merrell. Many were consolidated into a class action, one of the largest ever at that time against a drug company. While Merrell is estimated to have earned slightly more than $1 million in profits in the two years preceding the drug’s recall, the civil settlements eventually cost much more, some $200 million. Compounding Merrell’s problems, the Justice Department brought criminal charges against a vice president and three managers. They pled no contest to the charges.