Paternalistic or protective? Freedom of expression and direct-to-consumer drug advertising policy in Canada.

Direct-to-consumer advertising (DTCA) of prescription drugs is an increasingly contentious issue in Canada. Under the Food and Drugs Act, the pharmaceutical industry is limited to advertising prescription medications to medical intermediaries such as doctors and pharmacists. Straightforward advertising directly to the public is proscribed, with such advertisements limited to describing either the name, quantity, and price of a drug or what it is used for – but not both. Proponents of DTCA contend that Canadians have a right of access to health information that is denied under the current ban. In this paper, I will argue that the prohibition on DTCA could be successfully challenged under the Charter of Rights and Freedoms, on the grounds that it represents a violation of the guaranteed right to freedom of expression under s. 2(b). I will further suggest that the relevant jurisprudence indicates that this limitation on expression would likely fail an attempt at justification under s. 1.