Thursday, October 05, 2006

Ending drug advertising

Here's a surprising fact: New Zealand is one of only two countries in the OECD to allow direct-to-consumer pharmaceutical advertising (the other being of course the US). As a result, we've seen an exponential growth in the level of drug advertising on our television screens, as drug companies have attempted to boost sales by having patients pressure doctors for specific medicines. But a 2003 report [PDF] from Auckland, Wellington, Christchurch and Dunedin schools of medicine made a strong case that such advertising is harmful. Quite apart from failing to provide objective information on the risks and benefits of the drugs being marketed, pushing up drug spending by increasing demand, and promoting the "medicalisation" of normal health by creating new "diseases" to be treated, it also compromises patient safety. As the report points out,

Rational prescribing promotes caution when using new medicines and suggests older medicines should not be replaced unless there is evidence of major advantages to be gained by doing so.

Direct-to-consumer advertising undermines this - that's the point. And it has meant problems, when heavily marketed drugs with wide market share have been discovered to be unsafe.

Now after years of procrastination, the government is finally moving to end this practice. And not unsurprisingly, the pharmaceutical industry is not pleased. But rather than addressing the concerns raised by the report (which echoes other studies from the US), instead they're resorting to their usual crude blackmail of threatening to withdraw research funding. But more amusing is their second "argument":

"(A ban) would send another signal that this is an anti-industry, anti-United States government," Merck Sharp and Dohme managing director Alister Brown said yesterday.

That's right - joining the civilised world in stopping pharmaceutical companies from promoting unsafe drugs to people who don't really need them is "anti-American". Do we need any more evidence that that term really is the last refuge of the morally indefensible?


NZ is currrently less restrictive than the US in terms of pharmaceutical advertising - in the US, you're apparently required to be somewhat more specific about the possible side-effects of the drug you're peddling. Crazy.

Xenical did substantially better in NZ than in the US, per capita. One reason I've seen put forward for this is that on the US ads they had to make very clear that Xenical, when working as designed, causes an "oily anal discharge" when the subject taking it eats anything fatty.

Of course I'm sure that's not the whole story - that very minor side effect probably put hardly anyone off...

Posted by Jarrod : 10/05/2006 11:02:00 AM

I can see arguments for greater regulation, but getting rid of it altogether would be unfortunate. For myself, because of one ad for a pharmacy-only (but non-prescription) drug, I realised that something I had might not go away by itself (which most stuff does).

I went to the doctor, the ad was right, he prescribed a generic version of the drug in question, and it cleared up. Without drug advertising I probably wouldn't have gone so quickly, and it may have gotten substantially worse.

Posted by Anonymous : 10/05/2006 11:12:00 AM

If drug ads were required to meet reasonable standards of disclosure and explanation, they would run for at least 15 minutes. Maybe we should just demand that?

I happen to think that advertising like "Family Health Diary" are targetting the old and ignorant who think its some sort of impartial information film. NZ telly should be made to be like ITV in the UK used to be (and to some extent still is) - ads must be in ad breaks and clearly distinguished as advertising.

Posted by Rich : 10/05/2006 01:46:00 PM

> If drug ads were required to meet
> reasonable standards of disclosure
> and explanation, they would run
> for at least 15 minutes. Maybe we
> should just demand that?

Yes - the problem is that, currently, the courts don't adequately punish companies which use misleading advertising, or advertising that misleads by omission.

However, from a political perspective, the move to criminalise the direct advertisement of pharmaceuticals has nothing to do with providing the consumer with the relevant facts.

It has everything to do with the fact that the current Government doesn't believe the average NZer is capable of running his own life.

That, and the fact that many socialists are morally opposed to companies profiting from selling medicine - there is an underlying & irrational hatred of 'drug companies' at work here too.

Posted by Duncan Bayne : 10/05/2006 02:49:00 PM

So you would call every government except ours and that of the US socialist? We are the only countries allowing direct to consumer drug advertising.

Posted by Anonymous : 10/05/2006 03:06:00 PM


What is your point? I never said that only socialist Governments prohibit direct-to-consumer advertising, or that a Government cannot be socialist if it doesn't.

Posted by Duncan Bayne : 10/05/2006 03:39:00 PM

Why exactly do the motivations of those pushing for the restrictions matter? Surely the important issue is whether or not banning pharmaceutical advertising is positive, rather than whether it is ideologically driven.

Unless you're just looking for another excuse to attack 'socialists', that is.

Posted by Jarrod : 10/05/2006 04:26:00 PM


You're right - the correct question to ask is whether the Government has any right to prevent a company from advertising its wares?

The answer is of course, no. The duty of the Government is to create & enforce laws that harshly penalize any misrepresentation, not hide consumers from information that it thinks they might misuse.

The issue of the motivation of those calling for such a ban is only of interest from a political perspective; i.e. understanding the real reasons behind the call for such a ban. In terms of determining the morality of such a ban, motivation is irrelevant.

Posted by Duncan Bayne : 10/05/2006 04:54:00 PM

Sorry duncan, the government, as representative of the people of NZ, has the right to do anything it likes, subject to international law, human rights and getting a parliamentary majority.

And corporations don't have human rights - so basically we are perfectly entitled to ban them from doing anything.

Posted by Rich : 10/05/2006 04:58:00 PM


The Government does not have the moral right to do whatever it wants. It may have the legal right to do so, just as e.g. State Governments in the US have the legal right to ban abortion - but that doesn't make it moral.

Furthermore, your argument re. the status of corporates is irrelevant to the issue at hand. It doesn't matter who makes the drugs, the ban concerns the advertisement of same.

Posted by Duncan Bayne : 10/05/2006 05:06:00 PM

State governments in the U.S. don't have the legal right to ban abortion. It's protected under the implied Fourth Amendment right to medical privacy, incorporated under the Fourteenth Amendment. They have no legal power to pass laws contrary to the federal Constitution - or, rather, to enforce them once passed. If they wanted to do that, they'd have to secede.

Posted by Anonymous : 10/05/2006 05:24:00 PM

...the correct question to ask is whether the Government has any right to prevent a company from advertising its wares?

If this is the simplest way to achieve the greatest health benefit for consumers, then why not?

The unfortunate problem in this situation is that the middle ground - placing greater restrictions on pharmaceutical advertising, and enforcing those restrictions - is relatively complex, and open to abuse (as seen in the US, for example).

There is a non-trivial chance that a substantial proportion of the health problems that may be attributed to unrestricted (or lightly restricted) pharmaceutical advertising would continue under a regime of more heavily restricted advertising, at least until penalties from enforcement had grown to significant enough levels for a significant enough proportion of drug companies - whereas with a ban, any health problems attributable to unrestricted advertising would presumably disappear quite quickly.

The question therefore should be: are the (health, rather than economic) consequences of having a ban on pharmaceutical advertising worse than the consequences of not having such a ban, or the consequences of simply increasing restrictions and enforcement?

Posted by Jarrod : 10/05/2006 05:31:00 PM


Perhaps a more important, fundamental question you should ask: do the ends justify the means?

Posted by Duncan Bayne : 10/05/2006 06:32:00 PM

How about a self regulting system where any person can raise a case against a company for "misleading advertising" and recieve a cut of the penalties.

Those penalties being nice and big where drugs are concerned.. particularly magnetic matresses, weight loss formulae and deer velvet.

And make those who appear on the ads liable also.

dont know about the product your advertising? well dont advertise it!

Posted by Genius : 10/05/2006 06:56:00 PM

I should say where health is concerned

Posted by Genius : 10/05/2006 06:57:00 PM

Sure, but this is where I suspect we might have a philosophical difference of opinion.

Because if having a ban on pharmaceutical advertising leads to significant health benefits for the public - then my answer to your question is "yes".

Especially because I don't believe the consequences to the drug industry will be that significant. They'll still be able to market to doctors; people will still get sick; doctors will therefore still prescribe drugs.

Those drugs, however, will be what the doctor thinks will have the best clinical outcome, rather than whatever the patient has seen an ad for in the latest Listener.

Posted by Jarrod : 10/06/2006 09:25:00 AM


Well said - that is indeed our fundamental difference.

Advertising is just like any other sort of expression, in that one has the right to freedom of expression. Obviously, one doesn't have the right to violate the rights of others through ones actions - so fraudulent or misleading advertising should be prohibited, & IMO much more strongly than it is now.

But - and this is a big but - it's a right. Which means that it's not moral to constrain it, regardless of what ends you are trying to achieve.

The utilitarian argument in favour of the Government abrogating rights can be seen to be faulty if you apply it consistently.

For example, I have heard that the Chinese 'justice' system is careful to ensure that someone is caught & executed for high-profile crimes, in order that the system function as a deterrent. That the person executed might be innocent is considered a low price to pay for the dramatic reduction in crime caused by such a harsh deterrent.

Now, if you assume that:

- the Government may abrogate the rights of citizens if it's in "the interests of the many" or however you choose to express that value judgement

- the aforementioned deterrent system actually works

... can you consistently argue against that model? I don't think you can, unless you consider rights inviolable.

After all, you're talking about abrogating the right to freedom of expression for the good of the many, why not the right to life? Or property? Or religion?

Posted by Duncan Bayne : 10/06/2006 11:56:00 AM

As Rich pointed out, when we talk about rights, we usually mean the rights of individuals, not the rights of companies.

An individual can of course be a manufacturer and wholesaler of pharmaceuticals - but to claim that this is commonplace would be disingenuous at best. So I'm fairly relaxed about the potential practical impact of such a law on individual freedom of speech - and about it's potential for eroding other rights.

Posted by Jarrod : 10/06/2006 12:45:00 PM


Shall we deal with the principles first, then argue specific applications?

The specific principle I'm trying to determine your position on is whether the Government can, morally, abrogate an individual right (the only kind of right there is) citing 'the good of the many' as justification.

If you think they can, then the issue of 'collective rights' is totally irrelevant, because you'd accept it being done to individuals too.

If however we're on the same page w.r.t. individual rights, then & only then need we address the question of collective rights vs. the rights of individuals that comprise that group.

Posted by Duncan Bayne : 10/06/2006 02:32:00 PM

This is an issue that reminds me of the LLU debate - everywhere in the world its an open and shut, non controversial, issue. For some reason, in NZ a bunch of contrarian libertarians see a dark plot to take over our lives.

Posted by Sanctuary : 10/06/2006 02:50:00 PM


Is it moral for the Government to restrict individual rights - particularly a widely accepted right such as freedom of speech?

No (at least insofar as we assume that 'The Government' is a moral entity). I think that in general laws should exist to bolster individual rights, not restrict them; and to resolve issues where the rights of different individuals might conflict.

This is patently not how things operate currently, however; and the way I see the legal system relating to corporate entities is of course quite different.

Posted by Jarrod : 10/06/2006 03:05:00 PM

Okay, so then the next question is: should advertising constitute protected expression?

Posted by Duncan Bayne : 10/06/2006 08:22:00 PM

1. Pharmaceutical company spends its own money developing a drug that has a positive effect upon a medical condition in some way.

2. Pharmaceutical company tests drug to the extent that it can then go through the regulatory hoops to allow it to be legally available in New Zealand.

3. Pharmaceutical company starts selling drug through licenced pharmacists who are competent in dispensing drugs on prescription.

4. Pharmaceutical company uses its own money to pay for advertising on TV channels, radio stations, websites, print media etc. to promote the product. The broadcast advertising is regulated by the Advertising Standards Authority.

5. The product is regulated both as medication and in general contract law.

6. A sane adult sees the advertisement and is interested in spending her own money on the drug because it may have positive effects. She wants to ingest it in her body.

7. The sane adult visits her GP and requests the drug. The GP makes an assessment as to whether it is a good idea or not, and either chooses not to write out a prescription (adult then either goes to another GP or gives up) or to write on out.

8. Sane adult go to pharmacy and requests the drug on prescription, receives and pays for it.

9. Pharmacist dispenses the drug and provides advice on how to safely use it.

10. Sane adult uses drug.

What's the problem? Why is it the state's business to control what adults choose to put in their own bodies? Nobody is being forced - but some people think that because some people are stupid and might make mistakes with pharmaceuticals - advertising should be banned.

Some people might eat too much sugar or fat, some people might watch too much TV - same problem

Posted by Libertyscott : 10/06/2006 11:02:00 PM

utilitarianism is more robust than that, the fact you can make that argument is a count against the chinese policy. Having said that I thinkthat innocent peopel being found guily is an inevitable cost of having a judicial system. It would be a balancing act - infact it already is we just try not to think about it that way.

Posted by Genius : 10/07/2006 08:51:00 AM

Would you suggest that all or even most 'sane adults' are capable of:
1) Self-diagnosis of any and all medical conditions
2) Self-prescribing an effective remedy for any and all medical conditions?

Posted by Jarrod : 10/08/2006 01:43:00 AM

Should advertising constitute protected expression?

You clearly think it should, no? If so, why?

Posted by Jarrod : 10/08/2006 01:49:00 AM

libertyscott, the problem actually lies in the fact that advertising, as part of the market economy, is a propaganda system; i.e it's not as benign as you imply. This is just another instance of market socialists trying to minimise the harm caused by the market economy. We'd be better off, of course, abolishing the market economy and it propaganda system altogether and implementing a participatory economy.

Posted by Anonymous : 10/08/2006 04:44:00 AM

I'm not sure how the pharmaceutical companies operate in NZ in relation to the doctors, but in the US, the drug companies give kickbacks to the doctors for prescribing their drug as well. This gives the doctors incentive to overlook other solutions to what may be the patient's problem (my ex-wife worked in the health insurance industry & this was a common occurance).

Drugs have their uses, certainly, but the basis of using those drugs should be not because the patient WANTS them, but because the doctor, after examining the patient, decides this would be the best course of action. The people who are taking these drugs are PATIENTS, not CONSUMERS, and drug advertising undermines the whole purpose of using prescription drugs.

Health insurance companies are also more likely to pay for drugs than for research further into the patient's ailment-- a quick fix.

And in addition to this, there is the problem of a variety of drugs that create side-effects or conflict with other drugs which may be taken as well.

Everywhere I have lived in the US, I run across people who go to their doctor asking for drugs (particularly mind-altering drugs) merely because they WANT it-- not because they NEED it, not because the doctor has diagnosed them & concluded that this drug was the best solution.

Many of these mind-altering drugs are also almost impossible to get off of as well.

The US is a drug culture & I'm not talking about pot or crack. I'm talking about perfectly legal drugs, prescribed by doctors. War on drugs, my ass!


Posted by Anonymous : 10/08/2006 04:45:00 AM

Liberty scott, not all adults watching television are sane, and certainly not all of them are very bright. Does this mean it is okay to mislead them? The commerce commission does not think so, which is why they have interpreted "misleading" advertisements under the Fair Trading Act to mean not advertisements that a "sane adult" would find misleading, but advertisements that would mislead people of lower intelligence, the metally unstable or those for whom English is a second language.

And advertising on television is not a "right". A right is something that can be enjoyed by everyone for whom the right would be meaningful. So freedom of religion is a right. Freedom of speech is a right. But freedom to spend millions advertising on television is not a right but a priviledge for the wealthy. So with priviledges come responsibilities. And if the drug companies abuse their privilege then I see nothing wrong with them being removed.


Posted by kiore1 : 10/09/2006 09:13:00 PM

As an actual doctor (a GP) I thought I might add a comment from someone with experience in the area.

No doubt some supporters truly believe that they are doing the right thing by the health of New Zealanders by this ban. The majority of the sentiment, however, comes from a dislike of informed assertive patients either demanding various treatments or asking too many questions. The same sentiment applies to those who see a doctor after reading around their problem on the internet.

Many if not most practising doctors do not share this sentiment but those who escape working with actual patients to the world of academia do not like their authority being challenged. Hence all the arguments for the ban come from universities. Add in a general dislike of drug companies and the fact that only the US has the same law as NZ (if the rest of the world jumped off the harbour bridge......) into a health system where regulation and bureaucracy are exploding and there you go.

The individual who saw an ad then went to the doctor only to be prescribed something else is right. That advertisement and the consultation that followed provided an opportunity for a discussion of the diagnosis, it's cause and after discussing the options that doctor and patient decided on a treatment. Fair enough. And it happens every day, with people getting advice from friends, the internet, magazines and advertisements.

Not any more though, the times they are a changing back, doctor know's best.

Oh well, at least I might get home before 7pm now.

(anonymous for a reason, NZ is a small place)

Posted by Anonymous : 10/10/2006 04:43:00 PM