THE EVIDENTIARY BURDEN FOR OVERTURNING GOVERNMENT'S CHOICE OF REGULATORY INSTRUMENT: THE CASE OF DIRECT-TO-CONSUMER ADVERTISING OF PRESCRIPTION DRUGS

Abstract

This article explores Michael Trebilcock's claim that the federal government's present restrictions on direct-to-consumer advertising (dtca) of prescription drugs should not withstand a Charter challenge and his argument that a less intrusive, more nuanced regulatory regime could be implemented. The author explores the government's challenges in mounting a s. 1 defence, analysing the role and limitations of social-science evidence and recognizing that both inherent methodological difficulties and the manner in which health services researchers frame their approach to policy questions are such that there may never be sufficiently robust evidence of competing policy alternatives for the government to use in a s. 1 challenge. The article then goes on to review the appropriate evidentiary hurdles the government should be required to satisfy to justify this kind of policy in the face of a constitutional challenge and raises the question of the courts’ competence to assess the policy ramifications of choosing to take a more stringent approach to review. The policy approaches to dtca in other countries are explored to demonstrate that although alternative regulatory regimes exist in theory, the reality is that they are not enforced, and as such are not real alternatives to the current regime. The author explores what evidence is available regarding the advantages and disadvantages of dtca and concludes that the latter outweigh the former, that the prospect of more nuanced regulations are theoretical only, and that Canada should maintain its present regulatory restrictions.