Direct-to-consumer advertising: CanWest's Bid to Overturn Canada's Ban

On December 23, 2005 CanWest MediaWorks launched a legal challenge against the Canadian government's ban on direct-to-consumer advertising of prescription drugs.

CanWest's Legal Claim

The company's statement of claim in the Ontario Superior Court names the Attorney General of Canada as the defendent to an action that challenges the the constitutionality of the Food and Drugs Act and Regulations that ban direct-to-consumer ("DTC") advertising of prescription drugs. A legal firm summarises that statement of claim as being that "the challenged provisions are inconsistent with section 2(b) of the Charter that guarantees freedom of expression. Such advertising is permitted in the U.S., and Canadians are currently exposed to DTC through U.S. media sources. The media company has taken the position that the safety concerns addressed by the challenged provisions could be addressed within new legislation that conforms to the Charter and which does not discriminate against Canadian media outlets." [1] (The Court File number is 05-W-303001 PD2).

In a CanWest MediaWorks media release, which is not available on their website, the company states that "The current advertising restrictions are unfair, ineffective and discriminatory ... Canadians are already inundated by American advertisements, making the issue one of 'basic business fairness' between the two markets ... Before replacing existing regulations on direct-to-consumer advertisements, the government should first consider whether present guidelines violate the Charter of Rights and Freedoms." [2]

CanWests Remedy Dismissed

Barbara Mintzes, from the Centre for Health Services and Policy Research at the University of British Columbia, argues that there is a need for better enforcement of the existing legislation. "CanWest's solution is to get rid of the law. This is like saying that if corner stores are getting away with selling cigarettes to 13 year olds, we might as well get rid of the age restrictions," she told the British Medical Journal. [3] (Sub req'd).

Affadavits In Support of Union, Health & Consumer Intervenors In the Case

• Canadian Union of Public Employees, "CUPE intervenes in case against drug ads", Media Release, October 4, 2006.
• "Notice of application for intervenor status", September 2006.
• "Affidavit for Anne Rochon Ford", July 2006.
• "Affidavit for Colleen Fuller", August 2006.
• "Affidavit for Michael Mcbane", August 2006.
• "Affidavit of Brian Payne.pdf", August 2006.
• "Affidavit of Linda Silas", July 2006.
• "Affidavit of T. Young", August 2006.
• "Affadavit of Cathy Remus", September 2006.

Other SourceWatch Resources

• Direct-to-consumer advertising: Canada's Ban
• Direct-to-consumer advertising: The Campaign To Overturn Europe's Ban
• Direct-to-consumer advertising
• Direct-to-consumer advertising in the United States
• Direct-to-consumer advertising in New Zealand
• Disease awareness campaigns
• Drug industry
• Pharmaceutical Research and Manufacturers of America

External links

Reports

• Women and Health Protection, "Canwest's Charter Challenge on prescription drug advertisements:A Citizens Guide", June 2006. (698Kb Pdf)

General Articles

• "Drug companies want advertising restrictions lifted", CBC, February 13, 2002.
• Roger Tam, "Constitutional Challenge to Canadian Direct-to-Consumer Advertising Laws", Gowlings.com, December, 2005.
• André Picard, "Ottawa should step up curbs on drug ads, report says", Globe & Mail, January 30, 2006.
• Jennifer Young, "Drug ad regulations under fire Current legislation prohibits direct-to-consumer ads, but loopholes exist", Capital News Online, March 3, 2006.
• "Court weighs changes to Canada's drug advertising laws", CBC, June 12, 2006.
• Alan Cassels, "Canada may be forced to allow direct to consumer advertising", British Medical Journal, June 24, 2006. (Sub req'd.)
• Colleen Flood and Michelle Zimmerman (Faculty of Law, University of Toronto), "Direct-to-consumer advertising: CanWest's Charter Challenge", Institute of Health Services and Policy Research (IHSPR), August 2006.
• Danylo Hawaleshka, "Admen on drugs: With millions at stake, CanWest is fighting to change the rules on drug advertising", October 16, 2006.