Charter challenge on drugs ads: A challenge in the wrong direction

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Last year we reported in Network that a public interest coalition of groups, including Women and Health Protection (WHP), was granted intervener status in the Charter challenge on direct-to-consumer prescription drug advertising (DTCA) in Canada. With cross examinations underway since the beginning of this year and the case to be argued before the Superior Court of Ontario in June 2008, it’s time for an update.   

A legal case that has had little attention in the Canadian media could lead to enormous repercussions for Canada’s health-care system. In December 2005, CanWest MediaWorks mounted a legal challenge against Canada’s prohibition of direct-to-consumer advertising of prescription drugs. In this Charter challenge, the company is claiming that the law infringes its freedom of expression. The case is being heard in the Ontario Superior Court.

A coalition of unions and citizen groups was granted intervener status in the case early in 2007 to address two issues that had not otherwise been brought to the case: effects on workers and on women. As a major cost driver, direct-to-consumer advertising is expected to have a strong negative effect on employee health benefits plans, as well as more generally affecting the sustainability of publicly funded health-care services. The history of prescription drug advertising raises alarm bells about specific harm to women because of the way women have been targeted in ad campaigns for drugs with serious risks, and because of the role of advertising in stimulating unnecessary medicalization of normal life.

Dr. John Abramson, a family practice clinical instructor at Harvard Medical School and author of Overdosed America: The broken promise of American medicine is an expert witness for the public interest coalition.

“This Charter challenge marks a critically important crossroad for the Canadian people—whether greater priority will be given to maximizing corporate free speech or optimizing Canadians’ health and containing their health-care costs,” says Abramson. “The drug industry now produces most of the medical science that informs doctors’ decisions. Their fundamental responsibility is not to the public’s health, but to their shareholder’s wealth.”

In 2002, Abramson left his 20-year practice as a family practitioner in the United States to dedicate his time to researching the impacts of pharmaceutical industry influence on health care. When he was in Ontario for cross examination in March 2008, the WHP hosted a public lecture by Abramson at the University of Toronto. Abramson’s presentation “Drug ads: Is corporate free speech more important than your health?" on March 4, 2008 was a riveting account of the potential threats to Canada’s health-care system posed by drug advertising.

“There are lessons to be learned from the United States where DTCA’s fundamental purpose is already being realized: to increase revenues from drug sales often at considerable risk to consumer health and well-being,” says Abramson. 

Information about direct-to-consumer advertising and the Charter challenge is available on Women and Health Protection’s website (, including background on the issues, WHP activities related to DTCA and affidavits by expert witnesses in the Charter challenge [see box this page for more detail].
The outcome of the CanWest Charter challenge will not be known until after the court hearing in June, but with the wide-reaching implications of the case in terms of drug safety and public health in Canada, it’s important to “watch this space”—or, more accurately, to watch the WHP website for updates.

Women and Health Protection (WHP) is a coalition of community groups, researchers, journalists and activists concerned about the safety of pharmaceutical drugs.

Members of the public interest coalition represented by Dr. Abramson include the Canadian Federation of Nurses Unions, Canadian Union of Public Employees, the Canadian Health Coalition, Women and Health Protection, the Communications, Energy and Paperworkers Union of Canada, the Society for Diabetic Rights, the Medical Reform Group and Terence Young. Lawyer, Steven Shrybman, with the law firm, Sack, Goldblatt, Mitchell is providing legal representation for the coalition.