DTCA, part I – The CanWest Legal Challenge

This is the first of what I’m sure will end up being several posts on Direct-to-Consumer Advertising of prescription drugs. It’s an issue I never thought too much about as it silently crept into our magazines and televisions in the US, but once living in Canada and working in health policy, my eyes were opened to what a weird and complex issue this truly is. As a librarian, I was trained in the protection of freedom of expression, and as an agent of public health I have the responsibility to prioritize the health and welfare of the population. It is fascinating for me to explore an issue where suddenly all the great health policy thinkers I respect are arguing *for* government regulation of expression and it’s the giant multinational multi-$$$ conglomerate-corporations who are crying out that their expressive freedom is being infringed upon.

Background on DTCA:

Direct-to-consumer advertising (DTCA) of prescription drugs is only considered to be legal in two countries: the US and NZ (and NZ came very close to banning it last year). Neither country voted in a law to legalize DTCA or had any public consultation or parliamentary debate leading to the legalization. In the US, notably, the FDA relaxed its guidance on drug advertising in 1997, following drug companies’ pushing the boundaries farther and farther with little to no enforcement of the then-existing rules. The pharmaceutical industry has aggressively lobbied to be permitted to advertise prescription drugs to consumers in other regions, as TV drug advertising has proven to have a stunning return-on-investment for them. In 2002, the EU parliament actually voted on legalizing DTCA – 498 against to 42 for legalization.

Canada currently allows only very restricted forms of DTCA– although the rules are rarely enforced and often rather blatantly flouted (e.g. an illegal drug ad on the wall in a hospital near my house last year!). As I have alluded to previously, illegal print ads in public places abound this year as well. Additionally, Canadians are to some extent “contaminated” (to speak epidemiologically) by drug ads which US television stations (illegally) broadcast across the border. The existing systematic review of Benefits and Harms of Direct to Consumer Advertising finds that DTCA works – which is to say it affects prescriptions, sells the product it advertises – but that there is no evidence of any health benefit to the practice.

In a free-market health care “system” such as the US, this may seem a neutral, or even positive, finding when considered as innovative capitalistic market success. However, in a country such as Canada, which has the premise of universal healthcare as a human right as an element of its national identity, needless costs on health care are seen as coming out of the taxpayer’s pocket and thus diverting resources from other potential government/health services. (This is not to imply that the US should not consider cost of pharmaceuticals, particularly in light of the new Medicare Plan D for seniors, but just to clarify why the practice of DTCA may be framed differently in the different political economies.)

The Legal Challenge:

CanWest MediaWorks Inc., a wholly-owned subsidiary of CanWest Global Communications Corp.,an international media company and the largest media owner in Canada), has applied to the Ontario Superior Court to strike down the current Canadian laws restricting DTCA. The basis for this application is the claim that the regulations violate Section 2(b) of the Canadian Charter of Rights and Freedoms.

For non-Canadians, the Charter is the bill of rights in our constitution. It was only formally enacted in 1982, so the legacy of case law is rather young, and lots of things are still being defined and duked out in court. (As someone who grew up in the US and recalls celebrating the bicentennial of that constitution in grade 5, this is fascinating to me!)

One of the interesting things about the Charter is the very first section, which is called the “Limiting Clause” and more or less says that all of the rights about to be laid out in all the sections that follow can be limited if the limitations can be justified in a “free and democratic society.” The next section after this limiting clause that makes all other clauses non-absolute is the one that includes “Fundamental Freedoms” such as freedom of expression (the aforementioned 2b), thought, press, peaceful assembly, etc. The interplay between these first two sections leads to all sorts of fascinating legal wrangling – an example of which that is near & (not so) dear to many librarians is the Butler obscenity case, which set precedent for limiting pornographic free expression.

Finally, it should be noted that way down in Section 26, the Charter states that there may be other rights and freedoms, and that the rights & freedoms spelled out in the Charter should not infringe on those other rights. Some legal scholars have argued that health care falls under these other rights, while others think health is actually covered under another section (7) that guarantees “life, liberty and security of person.” Suffice to say here that there are sections under which health care could be argued to fall, and thus could possibly justify limiting freedom of expression. It’s all pretty convoluted, eh? Because free expression is protected under the Charter, in Section 2, it takes a very strong concern to enact Section 1’s Limiting Clause and limit any forms of expression. Ads are a form of expression (at least on the part of the content creator), so the question here becomes:

Are the harms of DTCA strong enough to justify (in a free and democratic society) limiting free expression?

In order to truly answer this question, there are a few issues to tackle:

  1. What are the harms of DTCA?
  2. How dangerous to freedom and democracy does it seem to limit the “expression” of DTCA?
  3. Are there other rights & freedoms not specified in the charter (such as a right to health/health care) that could justify limiting Sec 2 in the case of DTCA?

Next installment: unpacking the Freedom of Expression argument here

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4 Comments

Filed under Health, privatization

4 responses to “DTCA, part I – The CanWest Legal Challenge

  1. Pingback: Freedom of expression lawsuit irony « Social Justice Librarian

  2. Pingback: Canadian DTCA Charter Challenge Indefinitely Adjourned…and a tree falls in the forest « Social Justice Librarian

  3. Pingback: Online drug advertising & the regulatory challenge « Social Justice Librarian

  4. Pingback: Big ISP + Big Content Provider = test of new neutrality rules? « Social Justice Librarian

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