Are NDAs the new embargo agreements? Humana and Walmart seem to think so

Reporters: Have you ever signed a non-disclosure agreement (NDA) in exchange for access to embargoed information? An Embargo Watch tipster forwarded me an NDA from Humana-Walmart, which announced a new Medicare Part D prescription drug plan today.

Here’s the text of the NDA:

The terms of the Non-disclosure Agreement (NDA) are as follows. By agreeing to the terms of this NDA, the journalist will receive the details of the press conference:

– The NDA is intended to bind journalist in accordance with the terms outlined below and is between Walmart, Humana and the journalist.

– A press briefing to discuss a new Humana Medicare Prescription Drug Plan, the “Humana Walmart-Preferred Rx Plan (PDP)” will take place on Sept. 30, 2010.

– Per Centers for Medicare and Medicaid Services (CMS) guidelines, Humana may not market any of its 2011 Medicare Prescription Drug Plan (PDP) plan offerings prior to October 1, 2010.

– As a result of the CMS guidelines, Humana and Walmart must require that any journalist participating in the Sept. 30 press briefing will agree to the terms of this NDA by signing below, and thereby agrees NOT to report, file, transmit, run or otherwise disseminate any information (including print, broadcast or online) shared during the press briefing until after 12:01 a.m. Eastern on October 1, 2010.

– The journalist also agrees not to contact any person or organization for comment about the new Humana Walmart-Preferred Rx Plan (PDP) before Oct. 1, 2010

– No information shared during the press briefing may be disclosed by the journalist to any third party prior to October 1, 2010, except in the event that the journalist may need to file a story with his/her media outlet on Sept. 30, 2010, containing the PDP Plan information – in accordance with his/her usual and customary practices in order to be able to report a story after 12:01 a.m. Eastern on October 1, 2010. In such a case, the reporter may only disclose the PDP Plan information shared at the press briefing, or articles based on the information shared at the press briefing, to persons necessary for the reporter to report/run his/her story after 12:01 a.m. Eastern on October 1, 2010, and only to or with persons who will keep such information confidential until 12:01 a.m. Eastern or later on October 1, 2010.

For the most part, this is really just an embargo agreement. The last two clauses, however, are in conflict. The second-to-last seems to be saying  that reporters can’t contact anyone for comment before the embargo lifts, which makes it quite difficult to post anything at embargo other than the official party line. (If the government were doing this, it would be prior restraint.)

The last, however, suggests reporters can speak to anyone who agrees to the embargo, which would be pretty typical of how scientific journals embargo studies. So which is it?

This all seemed unusual to me, so I wanted to know why the companies had used an NDA instead of an embargo agreement. The Cohn-Wolfe PR agency, which coordinated the NDA with reporters, referred me to Walmart, which in turn referred me to Humana. I’ll update if I hear anything back.

Until I get more clarification, I’ll guess that Humana decided to do this for fear of reprisals from CMS if CMS had any reason to think they were marketing the plan before today.

In the meantime, the only story that seems to have gone live when the embargo lifted was one by Bloomberg, so either they signed the NDA or convinced Cohn-Wolfe to send them the information without signing it. The story ran at the same time a press release did, but has been updated. A number of other stories ran several hours later.