LAW, ECONOMICS AND PUBLIC POLICY: ESSAYS IN HONOUR OF MICHAEL TREBILCOCK: V SOCIAL AND PUBLIC POLICY: THE EVIDENTIARY BURDEN FOR OVERTURNING GOVERNMENT'S CHOICE OF REGULATORY INSTRUMENT: THE CASE OF DIRECT-TO-CONSUMER ADVERTISING OF PRESCRIPTION DRUGS + Skip over navigation
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Copyright (c) 2010 University of Toronto Process Inc.
University of Toronto Law Journal

LAW, ECONOMICS AND PUBLIC POLICY: ESSAYS IN HONOUR OF MICHAEL TREBILCOCK: V SOCIAL AND PUBLIC POLICY: THE EVIDENTIARY BURDEN FOR OVERTURNING GOVERNMENT'S CHOICE OF REGULATORY INSTRUMENT: THE CASE OF DIRECT-TO-CONSUMER ADVERTISING OF PRESCRIPTION DRUGS +



+ Heartfelt thanks to Lorian Hardcastle, Rebecca Majerczyk, Bryan Thomas, and Brad Abernethy for their assistance with this paper; for comments and references from Steve Morgan, Joel Lexchin, and Barbara Mintzes; and for the comments and suggestions from two anonymous reviewers. All errors and omissions remain my own.

Spring, 2010

University of Toronto Law Journal

60 Univ. of Toronto L.J. 397

Author

Colleen M. Flood *

Excerpt

I Introduction

Planning how to reflect on Michael Trebilcock's career has been tremendously difficult - he has influenced my thinking profoundly and has long now been a mentor and friend. How could I possibly do him justice? The answer is that I can't, in one essay, and this entire volume must be read to illuminate the breadth of his enormous contributions to date and to hint at what is yet to come. My contribution is to reflect on a recent foray of Michael's into the field of health law and policy. He ventured into this domain as an expert witness 1 for CanWest MediaWorks in its constitutional challenge to Canada's regulation of direct-to-consumer advertising (DTCA) of prescription drugs. In what follows I venture to explore our disagreement over the legitimacy of the present prohibitions on DTCA in order to muse about the role and limitations of social science evidence and the appropriate evidentiary hurdles a government should be required to satisfy to justify this kind of policy in the face of a constitutional challenge.

In December 2005, CanWest initiated a lawsuit against the federal government alleging that the prohibition of DTCA is an unjustified infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms. CanWest's commercial interest in this challenge is based on the fact that the prohibition places the media company at a competitive disadvantage to comparable American firms because, unlike those firms, it cannot sell advertising space to pharmaceutical ...
 
 
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