Tag Archives: charter challenge

Canadian DTCA Charter Challenge Indefinitely Adjourned…and a tree falls in the forest

The News

In the middle of financial turbulence, potential bankruptcy, and a storm of management changes, CanWest Global has decided to seek indefinite adjournment of their court case challenging Canadian restrictions on direct-to-consumer advertising (DTCA) of prescription drugs.  In summary, CanWest was alleging that the ban on certain types of DTCA was infringing on their freedom of expression, especially since they couldn’t make money off that type of ad while media across the border in the US could. The case was seen as a landmark case as it was a challenge to existing law under the Canadian Charter of Rights and Freedoms (a constitutional law case, for non-Canadians reading this), and thus would set new Canadian constitutional precedent.

The adjournment request came right at the 11th hour, since closing arguments were set to be heard June 15-19, which is to say, this past week. While CanWest can request to revive the case, it seems unlikely at this point, when the company is facing billions in debt and is working to secure major restructuring deals. It appears that CanWest may silently agree with opposing lawyer Stuart Shrybman, that the company should have pulled the plug on this “ill-conceived litigation” months ago,” and that the best option at this point is to avoid pouring more money into what is pretty much a lost cause.

So what? In short, this case has cost both CanWest and the government a lot of money since it was filed in December 2005. Current regulations on DTCA in Canada are not well enforced to begin with, and to my knowledge there’s not much indication that this is changing. However, by not opening the floodgates wider, we may be able to avoid even more expense and needless adverse side effects (such as Vioxx related deaths) that appear to be encouraged by DTCA.

Didn’t hear about this?  I’m not surprised. Somehow nobody else has either.

The News (not)  in the News

This story has been weirdly absent from the media.  And by media, I mean practically everybody.  When I heard about CanWest dropping this case, I immediately ran to my web browser and started searching for early news coverage…nothing.   A week later…still nothing in the mainstream news sources.

The medical journals? One article in the faithful CMAJ, which has offered ongoing coverage of this trial and whose parent organization, the Canadian Medical Assoiaition, has an official position statement opposing “Brand-specific direct-to-consumer advertisements, such as those permitted in the United States.”

Okay, well, I figured that perhaps this was an example of the failures of traditional media.  Maybe media companies aren’t nimble enough to catch this story in a timely manner; maybe the industry carries an inherent bias against reporting on what is essentially a failure (of the cut-your-losses type) of a fellow media behemoth.

The bloggers, though – the bloggers will have lots to say about this, right?  The bloggers are the new media, right?  Citizen journalism! Media democracy! They are us! We are on the ground, everywhere, reporting on the real issues in our spare time, without budgets to support travel expenses or copyediting, and hoping our cameras are not confiscated by the police and our tweets are not blocked.

So far I have found one lonely blog post about this, from the magazine marketing industry, which I’m sure has been watching CanWest’s case avidly, as a CanWest win would potentially open up a whole new world of direct-to-consumer drug ads, with accompanying revenue stream, for magazines as well as television channels. That post did link to one other blog, from a magazine marketing magazine.

But basically, this adjournment has been a tree falling in the forest.  Why?  Is it just tough to compete in the health news arena the week the WHO declares a pandemic? Perhaps, but the possibility of federal regulations on trans-fats  is getting press. Do we feel bad for CanWest, and not want to slag them more? I dunno, we seem to have an appetite for the details of the restructuring /fall of the Asper family empire. Is DTCA just a boring topic? Well, discussions of the topic can certainly be acronym-heavy, but there has been plenty of coverage in the media (even in CanWest outlets) about the recent Plos ONE article, “Twelve Years’ Experience with Direct-to-Consumer Advertising of Prescription Drugs in Canada: A Cautionary Tale.”

What’s the deal?  I don’t get it.

My government went to court against the largest media entity in the country, basically won, and no one is in the forest to hear the media giant fall!

For previous posts on direct-to-consumer advertising, see: dtca part 1, and part 2.

Disclosure: I work with authors in the PloS ONE article cited above, including on DTCA-related topics.

ETA – Apparently I (and Google) missed The Tyee’s Hook blog coverage of this on June 12. It’s here, if you’re interested.  Of note in this article is the statement, “a spokesperson for Canwest says the company did not ask for the adjournment and plans to continue the case in the fall” — which is entirely possible but not something I have seen/read elswehere. Anyone reading this have more info on CanWest’s official stance on this?

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