Health Canada's uneven enforcement of its ban on direct-to-consumer drug advertising may strengthen the hand of media companies fighting in court to have it overturned, the Canadian Medical Association Journal said Monday in an editorial.

'We get contamination from the U.S. We get direct-to-consumer advertising, because we get it from them.'—Dr. Paul Hebert

Signed by editor-in-chief Dr. Paul Hebert, the editorial said the current situation amounts to a double standard, with Canadian media outlets barred from selling drug ads, even though Canadians watching American TV networks or reading American magazines are being "bombarded" with drug advertisements.

"We get contamination from the U.S. We get direct-to-consumer advertising, because we get it from them," Hebert said in an interview. "So I guess my question is: Why is that allowed to happen?"

CanWest Global Communications is challenging the direct-to-consumer advertising ban, saying it violates the right to free expression enshrined in the Charter of Rights and Freedoms.

Health Canada spokesman Alastair Sinclair said the federal department is defending the case and preparing its response, but noted it would "not be appropriate for Health Canada to comment further on a matter before the courts."

The United States and New Zealand are the only jurisdictions in the world that allow drug companies to advertise prescription drugs directly to consumers. Where they are permitted to advertise, drug companies spend hundreds of millions of dollars trying to get consumers to ask for their brand of cholesterol-lowering medication or their version of acid reflux pills. Research has shown the investment in advertising pays off.

A study published in 2003 by Barbara Mintzes, a University of British Columbia health policy expert, showed that patients were 17 times more likely to get a prescription for a drug if they asked their doctor for it by name compared to patients who didn't ask for a new medication.

Strikingly, half of the doctors who wrote those prescriptions later admitted they were not convinced that medication was the best course of treatment for those patients.

Cholesterol drug heavily advertised in U.S. captures 15% of market

And earlier this year, Canadian and American researchers reported that a new cholesterol-lowering medication snared 15 per cent of the U.S. market for cholesterol drugs in 2006 following a massive advertising push. In Canada, the drug captured only 3.5 per cent of the market.

Ironically, a study that came out at the same time showed the drug, called ezetimibe, did not slow hardening of the arteries — the effect one seeks from a cholesterol-lowering medication — and sales of the drug then tumbled.

Though federal regulations ban direct-to-consumer drug advertising, Health Canada does permit two types of promotion — labelled in Hebert's editorial as "an odd approach to implementing its rules."

Companies can use "help-seeking messages" that describe a medical condition and urge people to get help if they have its symptoms. Or they can mount a so-called reminder ad that names a drug but doesn't say what it is used for — an approach that is only useful for the few prescription drugs that are household names.

Health Canada's Sinclair said the Food and Drug Regulations prohibit advertising any representation of a prescription drug to the general public other than its name, price and quantity.

Reminder ads and help-seeking messages cannot be used together in the same campaign, "since doing so would exceed the name, price and quantity restriction," he said Monday by e-mail.

However, certain medications — including vaccines and non-prescription biological drugs — are not covered by the advertising prohibition, said Sinclair. Among those would be vaccines recommended by provincial governments for public health reasons, which are always administered by health professionals.

Drug ads still shown in U.S. shows, magazines

But the CMAJ editorial said Health Canada does nothing to try to block the ubiquitous drug ads beaming into Canadian households via American TV networks or found throughout popular American magazines. And that inaction may undermine the government's case in court, it warned.

"The easy answer to this is if this doesn't change, CanWest is going to win and we'll get direct-to-consumer advertising," Hebert said. "I guess the question to everybody out there is: Is that what we really want?"

Hebert admitted he doesn't know whether Health Canada has the legal or technical means to block American drug ads from reaching Canadians in this country, though he thinks it would be possible if the federal government were sufficiently motivated.

"It's not my problem," he said, when asked how that could be done.

"My problem is we've got this stupid quagmire of a situation. So either we allow CanWest to basically sell us directly ads — because right now they're being penalized — or we fix the problem."