CanWest Charter Challenge on direct-to-consumer advertising of prescription drugs

 

What are the different parties saying?

In December 2005, CanWest MediaWorks began a Charter challenge against the federal government, claiming that the Food & Drugs Act prohibition of direct-to-consumer advertising infringes on the company's freedom of expression. The case has been filed with the Ontario Superior Court of Justice and is expected to eventually go to a higher court.

Early in 2007, Women and Health Protection, as part of a coalition of groups, was granted intervener status (party standing) in the Charter Challenge case of CanWest Mediaworks against the federal government on the issue of direct-to-consumer advertising (DTCA). (Coalition members are: Women and Health Protection, the Canadian Federation of Nurses Unions, the Canadian Health Coalition, the Canadian Union of Public Employees, the Communications, Energy and Paperworkers Union of Canada, the Society for Diabetic Rights, the Medical Reform Group, and Terence Young for Drug Safety Canada)

For more information see: Current ban on direct-to-consumer drug advertising must be upheld to protect patients and workers, says broad coalition of unions and citizen groups granted intervener status on Charter challenge

Cross-examinations on the case took place in the first half of 2008. The date for in-court hearings has been set at June 16, 2008, but has been postponed. In the meantime, interested parties in defence of Health Canada and of CanWest have submitted affidavits to the court. In close collaboration with members of our coalition, affidavits were submitted earlier this year by Dr. John Abramson of Harvard Medical School (on the impact of DTCA on women) and Jean Belleville, an actuarial consultant based in Montreal (on the impact of DTCA on health benefit costs) All these affidavits, and accompanying exhibits, can be found below.

Further background about the case can be found in a pamphlet prepared by Women and Health Protection.

CUPE has also prepared background information about DTCA and the legal case.

Expert Testimony

Witnesses for the government and a coalition of unions and non-profit organizations that have obtained standing in court have amassed a wealth of evidence on the serious potential for harm from DTCA. This information is found in the affidavits listed below.

John Abramson, representing the public interest coalition, raises concerns about specific harm to women from DTCA. Additionally, his testimony points to the strong links between negative effects of pharmaceutical promotion on medicine and DTCA. Jean Belleville points out the risks to union members and negotiated health benefit plans from skyrocketing drug costs fuelled by DTCA.

The Canadian government is arguing that the law is necessary for protection of public health. This is based primarily on the US research evidence on content and effects of DTCA (Joel Lexchin, Michael Wilkes). DTCA serves to drive costs up without adding health benefits, threatening sustainability of public health care financing (Steve Morgan), and the advertising experience to date has been highly problematic (Gurprit Kindra, Garry McCarron).

Prohibition of DTCA is a regulatory norm internationally, albeit one which is under threat in many jurisdictions (M.N.Graham Dukes). The Canadian government is already under siege, with advertisers repeatedly ignoring the federal government's attempt to stop illegal campaigns (Ann Sztuke-Fournier); opening up the country to DTCA would just compound the problem.

Additionally in these affidavits, you will find "reply" testimony that challenges CanWest's arguments that DTCA has health benefits or that it provides needed health information. Of particular note, is David Butler-Jones' testimony. David Butler-Jones is Canada's Chief Public Health Officer. He argues that we should not rely on drug companies for public health campaigns; governments can do a better job.

• CanWest's Charter Challenge on Prescription Drug Advertising: A Citizens' Guide (697KB pdf), August 2006.
  
  
• Affidavits of public interest coalition* intervening in support of the law:
  
  • Dr. John Abramson
  • Jean Belleville
  
  
  Coalition members are: Women and Health Protection, the Canadian Federation of Nurses Unions, the Canadian Health Coalition, the Canadian Union of Public Employees, the Communications, Energy and Paperworkers Union of Canada, the Society for Diabetic Rights, the Medical Reform Group, and Terence Young for Drug Safety Canada.
  
  
• Affidavits for Health Canada
  • Joel Lexchin
  • Joel Lexchin - Reply affidavit
  • Steven G. Morgan
  • Steven G. Morgan - Reply affidavit
  • Michael Wilkes
    • Exhibit 2 "A Report on the Effects and Issues Related to Direct to consumer Advertising in the United States" by Dr. Michael Wilkes
  • Michael Wilkes - Reply affidavit
    
  • Maurice Nelson Graham Dukes
  • Exhibit 2 - Direct-to-Consumer Advertising of Prescription Medicines: A Review of Legislation and Policies in the Developed World (272KB pdf), by Prof. Dr. M.N. Graham Dukes, June 2006.
  • Gurprit Kindra
  • Ann Sztuke-Fournier
  • Gary F. McCarron
  • David Butler-Jones
  • James Hanley
• Affidavits for CanWest
  • Julie Donohue
    • Exhibit B
    • Exhibit C
    • ExhibitsD-E
  • Richard Dolinar
    • Exhibits A-D
    • Exhibit E
    • Exhibits F-H
    • Exhibit J
  • Richard Frank
    • Exhibit A
  • Don Fulgosi
  • Kathy Gardner & Exhibits A-E
    • Exhibits F-I
    • Exhibits J-Q
  • Michael J. Trebilcock
    • ExhibitsA-C
    • Exhibit D
  • Stephen Walter
    • Exhibit A
    • Exhibits B-C

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