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Lawsuit Over Right to DTC in Canada

According to PharmaTimes, CanWest Mediaworks, Canada’s largest newspaper publisher and owner of more than 30 television stations, is suing the federal government for not permitting direct-to-consumer advertising (DTCA) of prescription drugs because, it says, this breaches its freedom of expression under Canada’s Charter of Rights and Freedoms.

Along with every country in the world apart from the USA and New Zealand, Canada does not permit DTCA of prescription drugs. However, CanWest is arguing in the Ontario Superior Court that this prohibition, which is enshrined in the Food and Drugs Act, places it at a competitive disadvantage to US newspaper and magazines which are sold on Canadian newsstands, because it prevents it from selling advertising space to pharmaceutical manufacturers. The company also points out that Canada does allow over-the-counter (OTC) medicines to be advertised directly to consumers, even though these products also carry risks.

CanWest first launched its court challenge back in December 2005 and, even though the case has had a surprisingly low profile, a large group of concerned organizations has obtained party status to oppose it; these include groups representing public employees, workers in the communications, energy and paper industries, nurses, patient associations and other advocacy groups. “Obtaining party status for such a diverse group is something of a breakthrough – it means that we can call our own witnesses and cross-examine,” says one of the parties, the Canadian Union of Public Employees (CUPE).

Another group, Women and Health Protection, points out that it is the drugmakers, and not the media, which are being prevented from advertising their products. So, the group asks, why are the companies not suing the government? In 1996, Merck Frosst had argued in a position paper delivered to Health Canada that the DTCA ban was a ban on manufacturers’ freedom of expression, as guaranteed under Section 2(b) of the Charter of Rights, but the firm’s position has been based on a decision that year on tobacco advertising.

“Since then, no drug company has launched a Charter challenge on DTCA. Perhaps this is because it would be a public relations disaster if pharmaceuticals were linked to tobacco as the two industries that challenged public health restrictions on advertising,” says Women and Health Protection.

The case will finally be heard this month, with a three-day hearing set to begin on June 16.