CanWest challenges Charter of Rights
in bid for millions in drug advertising

CanWest Global has launched a case in the Ontario Superior court claiming its “freedom of speech” guaranteed in the Charter of Rights has been violated by the prohibition on direct-to-consumer advertising (DTCA) in the Food & Drugs Act.

A group of advocacy groups and unions, including CEP, were granted intervener status in the case and are arguing two main points:

1)       DTCA harms consumers, in particular women, because it pushes only new (under patent) drugs whose track record on safety has not been fully established. The safety record for prescription drugs is often established in the first five years of its marketed life. This is because during clinical trials drugs are tested on too few people and for too short a time (and this isn’t something that can easily be changed). Women are generally under-represented in clinical trials and consequently are more vulnerable to adverse side effects; they also are the primary target for drug ads, both as direct consumers and as the gatekeepers into the family.

2)       DTCA increases utilization of drugs thereby increasing overall costs to public and private drug plans, as well as out-of-pocket purchasers.

Only two countries, the U.S. and New Zealand, allow DTCA and the latter country is reconsidering its regulation because of the negative impact it has had. DTCA was introduced in the US about 20 years ago, but it’s only been since 1997 that a regulatory change allowed such ads to be broadcast on television. The European Parliament has so far rejected proposals to allow DTCA in EU member countries mainly for the reasons cited above (ie., increased harm and cost). But the drug industry continues to push, arguing that advertising provides valuable information to consumers (no, they aren’t joking).

If CanWest is upheld in the Ontario Superior Court the issue is guaranteed to proceed to the Supreme Court of Canada. The irony is that it isn’t CanWest’s “free speech” rights which are infringed upon, but rather that of the drug industry which is maintaining a very low profile in the case.

CanWest stands to gain $200 million per year in advertising revenue – and that’s only its share of the potential. Currently CanWest (in its annual reports) is citing falling ad revenues and is watching as U.S. ads spill over the border into Canada. For that reason, and in spite of the obvious contradictions, CanWest also petitioned the Federal Court to allow it to sue Health Canada for non-enforcement of the ban on DTCA.

Health Canada is allowing the U.S. ads to be broadcast in Canada, but the Harper government has also “re-interpreted” the regulations to allow so-called “reminder ads” which include only the brand name and no health claims or hints about the product’s use. No risk information is required (the worst of all worlds). The judge in the Federal Court threw out the petition but said if the intervener groups in the Ontario case were to file a motion with the court it would be seriously considered.

This is important to freelancers for a number of reasons, including:
The threat of censorship: CanWest is a monopoly which won’t want to offend drug advertisers; in the U.S. currently the drug industry spends $4 billion a year on advertising and injured consumers have little choice but to seek redress through the courts via class action lawsuits because there is no court of public opinion to which they can appeal for justice (and good public policy); critiques of the drug industry and its products are increasingly found in “alternative” media and less frequently in the mainstream press and television.

The increased costs of health benefits impacted by increased utilization; and the increase in potential harm due to increased exposure to new drugs.

For more information on the CanWest Charter Challenge go to (Women & Health Protection).

Barbara Florio Graham Simon Teakettle Ink