Like most other countries, Canada prohibits direct-to-consumer-advertising of prescription drugs (DTCA)1. We do this as a health protection measure, to prevent inappropriate medicine use that could harm patients.
The rules on DTCA are being skirted and more recently outright challenged by corporate media. CUPE National is part of a coalition of organizations fighting to preserve and strengthen DTCA limits. We are also lobbying for a national drug plan that would be publicly funded and administered, control costs, provide universal access and ensure the safe and appropriate use of drugs. This backgrounder describes the legal challenge, identifies the problems with DTCA, and outlines our vision for pharmaceutical policy in Canada.
CUPE National would like to acknowledge the excellent work of the Canadian Health Coalition and Women and Health Protection. Much of the research in this document is drawn from the following publications: Canadian Health Coalition (September 2007), More For Less: Pharmacare – A National Drug Plan (PDF download), and Women and Health Protection (June 2006), CanWest’s Charter Challenge on prescription drug advertising: A Citizen’s Guide (PDF download.
The legal case
In December 2005, CanWest Mediaworks launched a court challenge against the federal government, claiming that the current restrictions on advertising prescription drugs are an infringement of freedom of speech under the Canadian Charter of Rights. CanWest is the largest publisher of newspapers in the country and owns over 30 television stations.2
CanWest is arguing that the current law places the company at a competitive disadvantage to U.S. media because it cannot sell advertising space to drug companies. The pharmaceutical industry spent US$4.8 billion last year on television, print, billboard and online ads in the United States. If even one-tenth as much was spent in Canada, it would amount to over CDN$500 million.
CanWest is not prevented from running editorial content on drugs under current law. Only prescription drug advertising is banned.
If this company wins its case, pharmaceutical companies will be able to advertise drugs by making claims about indications and effectiveness, as they can in the United States. The results would be more advertising, an increase in prescriptions for expensive brand name drugs, and higher drug expenditures. Already drug and media companies are skirting the Canadian law by showing U.S. ads on cable TV and in magazines that appear in Canada. We need the law strengthened, not weakened.
A group of concerned organizations and one individual obtained party status in the case: the Canadian Union of Public Employees; the Canadian Health Coalition; the Canadian Federation of Nurses Unions; Women and Health Protection; the Communications, Energy and Paperworkers Union the Society for Diabetic Rights; the Medical Reform Group; and Terence Young. 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.
Expert witnesses filed their affidavits in the spring, and cross-examination of witnesses will happen early next year. Final legal arguments will be submitted, and the hearing will take place over three days beginning June 16, 2008. The decision by the judge will follow.
Beyond the issue of DTCA, this legal case is important in terms of how the court interprets the Charter rights of free expression. In the hierarchy of rights, do the rights of the corporation trump the public’s right to health and safety, especially the rights of individuals who vulnerable as they grapple with serious illness?
The problems with DTCA
Canada must strengthen the limits on DTCA because:
Health care should not be treated as a commodity.
- Prescription drugs are not like most consumer products. They can cause serious harm, even death. Moreover, a seriously ill person has much more to lose from false advertising than someone buying a computer or a haircut.
Advertising is not the same as education.
- Advertising is aimed at increasing sales, not providing balanced, objective information that doctors, residents, patients and families need to make informed health choices. Vital facts are usually missing from ads – for example, the likelihood of the drug working3 – and the risks are usually downplayed4.
DTCA is unsafe.
- Doctors who rely more on information from drug promotion prescribe less appropriately. People who ask for an advertised medicine usually get it – even when they don’t have the condition the medicine treats5 or the doctor isn’t sure it’s the right thing to do.6
- Advertising pushes the newest medicines because they’re the big money makers. Most new drugs are no safer or more effective than existing drugs, and little is known about rare or long-term risks. Figures from the federal Patented Medicine Prices Review Board show that only 15 per cent of new drugs are significantly better than existing medications. In fact, the latest drug is sometimes less safe than older ones, which have been tried and tested for years.
- For example, Astra Zeneca spent over $US one billion to advertise Nexium when the generic Omeprazole, which isn’t advertised, has the same effect at a lower cost.7 As another example, the heavily-advertised arthritis drug Vioxx is estimated to have caused around 115,000 heart attacks and thousands of deaths in the U.S.8 Vioxx was not cheaper or more effective than the older alternatives. Market research suggests that up to four in 10 prescriptions for Vioxx were prompted by advertising.
DTCA medicalizes every problem.
- Advertising of medicine turns normal life into a medical problem. Many ads aim to convince people that they have an illness and need a pill to fix it. Drug treatments are concocted and marketed for shyness, anxiety, restless legs, insomnia and a host of other issues – often to the detriment of consumers. An analysis of TV ads found that medicines were often associated with images of happiness, regaining control over life, and social approval.9
- Many of the issues that are medicalized in fact reflect broader social problems that need collective action, not just a pill. A woman surviving violence might be given Prozac; a worker suffering harassment at work might be given Xanax; a child acting out because his family is poor and stressed might be given Ritalin. Not to say that prescription drugs are unnecessary; rather, individual medical treatments, including drugs, are not sufficient responses to social problems.
DTCA drives up health care costs.
- Health economist Steven Morgan has traced the sharp rise in drug costs that coincided with the increasing use of DTCA in the United States. Morgan estimates that public drug advertising is allowed in Canada, drug costs will go up by CDN $10 billion per year.10 That amount would pay for 40,000 more physicians every year.
Our solution – stronger limits on DTCA and a national drug program
In addition to fighting DTCA in the courts, CUPE is part of a coalition of unions and community organizations representing seniors, women and other citizens’ groups that is campaigning for a national pharmacare program.
Our commitment to pharmacare was confirmed by delegates attending our National Convention. Delegates spoke passionately about the need for a national drug plan and passed a strong resolution mandating our National Union to continue this fight.
Our vision of a national pharmacare program is far-reaching and forward-thinking. It includes stronger restrictions on DTCA and other drug industry marketing:
- Health Canada should enforce the legislation that prohibits drug advertising to the Canadian public, including mandatory filtering-out of broadcast ads from the United States.
- The loophole allowing reminder ads should be repealed.
- Drug company advertising, promotions and seminars directed at doctors and other health care providers must also be strictly controlled.
Our national pharmacare program would also create an independent, public drug research program, drug approvals process, and drug information system for health care providers and users.
In broad strokes, we want a national drug plan that:
- provides equal access to presription drugs for all Canadians
- controls costs through better price negotiation and lower administrative costs and
- encourages safer and more appropriate use of drugs.
Improving access to prescription drugs
There are over three million Canadians who are uninsured or under-insured for prescription drugs. Our patchwork of provincial programs and work-based plans means that access to drugs depends on where you live and where you work. For example, a couple aged over 65 with an income of $35,000 who need $1,000 of drugs per year would pay the entire cost in New Brunswick and Newfoundland, two-thirds of the cost in Québec, one-third in Ontario and British Columbia, and nothing in the Yukon or Northwest Territories.
Sixteen million Canadian workers and their spouses and dependents are covered by private drug insurance plans through workplace plans. Coverage varies enormously and is lost if the worker moves away, finds a different job or gets laid off. In most cases, benefits are cut off when the worker retires. And when workers lose drug coverage, so do their family members. Of the 16 million covered by work place plans, 8.4 million are “dependents”.
More than half of workers contribute to the cost of the insurance premiums through deductions from their wages. On top of that, most plans require the worker to pay for prescriptions though deductibles and co-payments. There are large disparities in coverage between workers.
As a case in point, the University of Saskatchewan provides 100 percent coverage up to $2,000 a year for professors and other faculty association members, but it only provides 80 percent coverage up to $500 a year for CUPE 1975 members and nothing at all for those who work casual hours - the most exploited group at the university.
Not only do work-based drug plans vary in quality and offer little security, but administering thousands of different plans is expensive and inefficient.
Consider too that almost half of Canadians (42 per cent) are not covered by work place drug plans. Part-time workers and young people are less likely to have drug coverage. Smaller work places are less likely to have a drug plan; insurance companies charge a much higher administrative fee to cover small numbers of workers.
Those least likely to have drug insurance are 18 to 24 years old and 55 to 64 years old. Students are clearly a disadvantaged group when it comes to prescription drug coverage.
Controlling drug costs
Our current patchwork of plans does nothing to restrain drug costs. Spending on drugs has nearly doubled since 1997, and it is increasing by a remarkable eight per cent a year above inflation. Between 1992 and 2002, household spending on food, clothing and shelter increased by 11 percent. Over the same decade, household spending on prescription drugs jumped more than 70 percent.
While Canadians scramble to pay for prescriptions and rising drug costs strain public and workplace insurance plans, drug companies are making enormous profits. Pharmaceutical industry profits are running at approximately double those in all manufacturing industries.
By far the major driver of rising costs is the use of new and more expensive drugs instead of existing, less-expensive products. Those increased costs might be acceptable if the newer drugs were better, but the vast majority are not.
A national drug plan would reduce costs through:
- Lower administrative costs. In workplace plans, roughly 25 percent of the cost of prescriptions (the medication and the professional fee) goes to the insurance administrator’s costs, taxes and commissions, and fees for benefits consultants and brokers.
- Choosing safer and less-expensive drugs.
- Negotiating with pharmaceutical companies to lower the price of drugs. In Australia, where there is a national drug plan, prices are nine per cent lower than in Canada.
- Controlling drug advertising and promotion to doctors and consumers.
- Earlier introduction of cheaper generic drugs.
Rising drug costs have a particular significance for unions. Benefits costs doubled between 1990 and 2004. Today, drug claims represent 75 percent of workplace extended health plan costs, and insurance premiums are increasing at a rate of 12 percent each year.
Employers have responded by increasing the share paid by workers and reducing the coverage. Workers find themselves paying more out-of-pocket, and benefits are cut, particularly for retirees and contingent workers. This in turn leads to more conflict at the bargaining table as workers struggle to protect their benefits. The pressure also hits us in other areas of the collective agreement as we fight to maintain or achieve work place drug plans.
Safe and appropriate use of drugs
A national pharmacare program could improve drug safety and improve prescribing practices as well. Currently, pharmaceutical companies pay half the operating costs of the agency that approves new drugs in Canada (Health Canada’s Therapeutic Products Directorate). The research used to choose which drugs should be offered to Canadians is compromised by funding from drug companies and is often unavailable to either medical professionals or the public.
In terms of approvals, the Canadian Medical Association Journal has criticized Health Canada for approving drugs too quickly and without adequate proof of safety.
We need a drug-approval agency free of conflict of interest, with no funding from drug companies - one that would approve drugs only when they are proven superior to existing medications.
A national drug plan would also be able to work with the medical profession to improve prescribing practices by giving doctors independent information on the value and benefits of the treatments they’re considering. It could also limit use of the most expensive drugs where others are just as effective. In Australia, the federal government funds an independent National Prescribing Service, whose mission is to improve drug prescribing by doctors and drug use by consumers.These are just some of the changes we want to see in pharmaceutical drug policy in this country. For more on why we need a national drug plan and our vision, read our coalition policy paper, More for Less: A National Pharmacare Strategy.
The CHC pharmacare tour
CUPE has supported a cross-Canada series of public hearings coordinated by the Canadian Health Coalition. Public meetings and sessions with elected leaders were held in cities across the country to highlight the need for a national pharmacare program. Through the hearings and a website, the CHC is collecting personal accounts of hardships caused by drug costs as well as inviting briefs and proposals for a national drug plan and better pharmaceutical management.
In September 2004, Canada’s First Ministers launched a National Pharmaceuticals Strategy with the goals of achieving more equitable access, bettter health outcomes and better value for money. The federal government has shelved the Strategy reports and stalled the work of this ministerial task force. It is up to us to put pharmacare back on the national agenda.
- Prescription drug advertising to the public is legal in only two countries, the United States and New Zealand.
- While CanWest is challenging the federal government to loosen its rules on drug advertising, it is also leading the charge for media convergence. By centralizing operations, it aims to offer drug and other advertisers package deals and one-stop shopping for different media platforms.
- Bell, RA, Wiles MS, Kravitz RL. “The educational value of consumer-targeted prescription drug print advertising.” J Fam Pract 2000; 49(12): 1092-1098.
- US General Accounting Office. Prescribing drugs: improvements needed in FDA’s oversight of direct-to-consumer advertising. GAO-07-54. Washington, DC: Nov 16, 2006.
- Kravitz RL, Epstein RM, Feldman MD et al. “Influence of patients’ requests for direct-to-consumer advertised antidepressants: a randomised controlled trial.” JAMA 2005; 293: 1995-2002.
- Mintzes B, Barer ML, Kravitz RL et al. “How does direct-to-consumer advertising (DTCA) affect prescribing? A survey in primary care environments with and without legal DTCA.” Can Medical Assn Journal 2003; 169: 405-412.
- Therapeutics Initiative. “Do Single Stereoisomer drugs provide value?” Therapeutics Letter, Issue 45, June-Sept 2002.
- Graham DJ, Campen D, Hui R et al. “Risk of acute myocardial infarction and sudden cardiac death in patients treated with cyclo-oxygenase 2 selective and non-selective non-steroidal anti-inflammatory drugs: nested case-control study.” Lancet 2005; 365: 475-481.
- Frosch DL, Krueger PM, Hornik RC et al. “Creating demand for prescription drugs: A content analysis of television direct-to-consumer advertising.” Ann Fam Med 2007 5: 6-13.
- Morgan S. “Direct-to-consumer advertising and expenditure on prescription drugs: A comparison of experiences in the United States and Canada.” Open Medicine [online] 1:1 (April 14, 2007).
- Hutty, S. Third Party Issues: Understanding Drug Benefits for Better Patient Care, Regina: Canadian Council on Continuing Education in Pharmacy, June 2002, p. 2.
- Jean Belleville Affidavit to the Ontario Superior Court of Justice in the case between CanWest Mediaworks Inc. and Attorney General of Canada, August 2, 2006.