Direct-to-Consumer Prescription Drug Ads: TheTreatment Options The pharmaceutical industry is currently ranked the most profitable industry in theUS by Fortune magazine. Billions of dollars are spent there every year marketing and advertising prescription drugs directly to consumers, where direct-to-consumer (DTC)advertising is allowed. It is not surprising, then, that DTC advertising of prescriptiondrugs has become a hot topic in the Canadian pharmaceutical industry, where it is Some of the most heralded ads on Canadian television in recent years are for theprescription drug Viagra. Indeed, last year’s amusingly sunny spot earned Pfizer Canada Marketing Magazines’ Marketer of the Year for 2002. In the ad, a middle-agedman bursts out of his house to the tune, “Good Morning, Good Morning”, a giddygrin on his face as he dances his way to work. The ad ends with the Viagra brandname across the screen, and the line “talk to your doctor”. This year’s version of the adfeatures riotously happy middle-aged couples dancing and cheering in the streets,shown in slow motion to the Queen song “We Are The Champions”.
The cleverness of these ads lies in their ability to raise viewers’ awareness of the drugthey promote, while managing not to violate Federal drug advertising laws. Theaverage viewer may appreciate the ads’ subtlety, but the lack of directness regardingViagra’s purpose is not simply the artistic vision of Pfizer Canada (the manufacturer)or the ad agency. It is the Food and Drug Act (the Act) and the corresponding Food andDrug Regulations (the Regulations) which force pharmaceutical companies to be sodiscreet.
“Name, Quantity, Price” Ads: Treatment 1The Act includes an outright prohibition on the advertising of any drug to the generalpublic as a cure or treatment for certain diseases or disorders such as cancer, diabetesor heart disease. Morever, the Regulations prohibit any advertising of prescriptiondrugs to the general public that makes a representation “other than with respect tothe brand name, proper name, common name, price and quantity of the drug”. This isthe reason why many prescription drug ads seen on Canadian television programs giveso little information about the products they pitch.
“Info” Ads: Treatment 2Canadian drug companies can also stay within the limits of the law by airing purely“informational” pieces that inform viewers about particular health conditions orillnesses. The catch is that companies cannot in any way link the messages to theirproducts. These pieces also must not imply that a drug is the only treatment for acondition. When done correctly, these non-promotional activities are not caught bythe definition of “advertising” under the Act. Pfizer aired such an informational piecein 2001, called “Doctor’s Office”. It depicted a man who was reluctant to speak to hisdoctor about erectile dysfunction. A poll1 indicated that eight out of ten men in thetarget audience reported having seen the ad, whereas the norm is four and a half.
Clearly this type of advertising can grab consumers’ attention. It also helped Pfizers’ 1I.D. Kucharsky, “Pfizer finds its Ad Groove” Marketing Magazine (February, 2003) 11 at 16.
overall campaign to have first educated viewers with the inability to uniformly enforce drug advertising laws leads “Doctor’s Office” segments prior to airing the flashier many proponents of DTC advertising to ask why we attempt to prohibit it in Canada at all. But prohibition is Another Canadian pharmaceutical company that is the rule, not the exception: New Zealand is the enjoying DTC advertising success is Organon Canada. The only country other than the US that currently allows DTC campaign for its birth controll pill, Marvelon 28, uses both ads. An interesting point is that 62% of Canadians treatments: the brand type and the information type. The surveyed in the same poll believe that advertising about branded ad is currently featured on transit posters and prescription drugs directly to Canadian consumers should consists of a picture of a birth control package, with the word “Duh” overhead, along with the brand name Marvelon 28. The information piece is appearing on Various interested organizations, as well as Health Canada, washroom posters and doorknob hangers on university are currently studying the pros and cons of DTC campuses across Canada, and features a young man and advertising in Canada. Some of the arguments in support woman embracing in one picture followed by the young of it are that it educates and empowers consumers, and woman cradling a baby in the next. The piece reads, “for lowers hospital costs due to earlier medication. Some of the every action, there is an equal and opposite reaction. Be arguments against it are that it artificially stimulates the prepared”, followed by the phrase, “talk to your doctor”.
need or desire for prescription drugs, increases drug costs due to over-spending on marketing and advertising, and Pharmaceutical marketers must still beware. According to pressures doctors to unnecessarily prescribe drugs that a Health Canada Policy Statement issued in November 2002, it is possible to run afoul of the law even if you Some of these fears appear to be well-grounded. Studies advertise your products using either the “name, quantity, also reveal that more American patients request and receive price” method or the purely “informational” method. An prescription drugs since DTC advertising has been allowed entire campaign is reviewable as a whole, so that if you air one of each type, the two taken as a whole may overstep The Therapeutic Products Programme of Health Canada issued a Discussion Document on April 6, 1999. Entitled“Direct-to-Consumer Advertising of Prescription Drugs”, the paper outlines considerations and objectives that were to be discussed at a multi-stakeholder workshop that year.
A recent poll indicates that many Canadians are not aware This paper and the corresponding workshop are evidence of the restrictions on pharmaceutical advertising.
that Health Canada is seriously considering the viability of According to the poll, 57% of Canadians are under the impression that “prescription medication can be advertised There is much heated debate on whether such advertising directly to Canadian consumers at present.”2 should become an accepted form of marketing for The misconception likely stems from the unlimited flow of pharmaceutical companies in Canada. Until this issue is American ads to which Canadians are exposed when resolved, be aware of the heavy restrictions, and take the watching US television programs. Add to this lesson from the Viagra campaign: try to use the laws to phenomenon the internet, another medium through which consumers view unfettered DTC advertising. Such an 2 Ipsos-Reid conducted the survey on behalf of the Alliance for Access to Written by: Sarah Redekopp and Bill Hearn Medical Information (“AAMI”) and released it in October of 2003.
3 Ipsos Pharm Trends, News Release, “DTC Ads for Prescription Drugs AreProving Their Worth”, May21, 2003.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted. For further information, please contact your McMillan Binch LLP lawyer or one of the Practice Leaders of our Advertising & Marketing Group listed below: Copyright 2004 McMillan Binch LLP BCE Place, Suite 4400 • Bay Wellington Tower • 181 Bay Street • Toronto • Ontario • Canada • M5J 2T3 • • Fax: 416.865.7048 • Tel: 416.865.7000


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