Healthy Skepticism Library item: 20138

Warning: This library includes all items relevant to health product marketing that we are aware of regardless of quality. Often we do not agree with all or part of the contents.

 

Publication type: Broadcast

Mesley W
The battle over a drug ad
Undercurrents : CBC-TV 2001 Feb 40

Full text:

Wendy Mesley: Hi, I’m Wendy Mesley, and this is Undercurrents. Most prescription drug advertising you see is on American TV channels and in US magazines. In Canada, the advertising of prescription drugs to consumers is tightly regulated and very limited. A government department, Health Canada, decides what’s legal drug advertising, and what’s not. But when it came to one TV spot, the drug company appears to have had the laugh.

Who wants to be a millionaire clip: Yes! For a quarter million dollars.

Mesley: On January tenth last year, over 2.4 million Canadians were watching “Who Wants to be a Millionaire” on CTV.

TV AD: I tried to quit other times. I had joined two smoke programs, one quite expensive, and was hypnotized three times. It was like giving up a buddy. It was giving up a friend. It was giving up some, something that I have had all my adult life. That’s why I truly didn’t expect this last experience to work, and work as well as it did. This is the best time of my life.

Mesley: Wait a minute. What was that? Let’s check it out again?

TV AD: I was giving up a friend.

Mesley: Well, Carol has obviously succeeded in quitting smoking.

TV AD: That’s why I truly didn’t expect this last experience to work, and work as well as it did.

Mesley: And something’s really helped her.

TV AD: This is the best time of my life!

Mesley: Oh. Brought to you by Zyban. Zyban is a prescription drug. So was that an ad? The officials at Health Canada thought so. Here in Canada, you’re not supposed to be able to advertise prescription drugs to the consumer. The Food and Drug Act says you can give the name of a prescription drug like Zyban, or say what it does – help you stop smoking. But not both at the same time. So in Ottawa, at Health Canada, when officials saw the Zyban spot, they figured someone was testing the rules.’

Ross Duncan (Health Canada Spokesman): It’s not in compliance with the act. In essence, what you have in the programming in question is a testimonial where a person is talking about addiction to smoking. So that’s talking about the disease. And then what appears at the end of the programming, the clip, is the flash where you see Zyban being posted as the name. And that’s a combination which is expressly prohibited under the regulations.

Mesley: In Pickering, Ontario, the pharmaceutical advisory board is paid by the drug companies to help keep their drug marketing within the rules. When the Zyban ad ran, the commissioner Ray Chepesiuk got a lot of calls from other drug companies.

Ray Chepesiuk (Pharmaceutical Advisory Board): Some were saying, can we do this? You know, if they were looking for, if they were missing opportunities, and they want to know what’s the current line.

Mesley: And what did you tell them?

Chepesiuk: In my opinion, no. And wait for the Health Canada response.

Mesley: So what was Health Canada’s response? Did they get the ad pulled from the airwaves? Well, getting answers was difficult, so we used the access to information act to find out more. We got Health Canada’s emails and correspondence on the Zyban’s case. And those emails reveal how GlaxoWellcome, the makers of Zyban, and CTV, were able to push the limits and get away with it. So let’s go back to January 11th 2000, the day after the ad appeared, and reconstruct what happened. Health Canada senior manager Anne Sztuke-Fournier sends a email to her colleagues at Health Canada pushing for an investigation.

Anne Sztuke-Fournier letter: The sponsor and CTV should be reminded of the food and drug regulations and to cease airing this message.

TV AD: I tried to quit other times…

Mesley: Three weeks have passed. It’s February 2nd and the ad is still running, and Anne Sztuke-Fournier is still pushing her Health Canada colleagues to get moving.

Sztuke-Fournier letter: Glaxo Wellcome needs to receive a warning letter, and CTV also needs to be reminded of the food and drug regulations. Please do not neglect this issue.

Mesley: This is three weeks later, and still a letter hasn’t gone out. A phone call hasn’t been made.

Duncan: I don’t know the reason why there would have been that delay. Potentially at the time, I mean, it’s very clear now what our position is.

Mesley: Why not immediately send them a letter or make a phone call?

Duncan: In any procedure or process of investigation, you have to look at it from a variety of perspectives.

Mesley: At the Health Canada building in Scarborough, Ontario, Faye Pierce has the job of drafting the letter to Glaxo Wellcome.

Faye Pierce letter: The commercials violate section c.01.044(1) of the regulations. We ask that you immediately suspend broadcast of these commercials until a full review of this activity can be completed.

Mesley: February 28, seven weeks from when the ad first aired, she gets the go-ahead and sends it off. Across town at Glaxo Wellcome, Faye Pierce’s letter lands on the desk of the senior legal council Patrick McGrade. And two weeks later he writes back.

Patrick McGrade letter: Glaxo Wellcome had no involvement in the development and production of the contents of the informational messages. As a result, only what you describe as the “brought to you by Zyban” flash, indicating sponsorship of the CTV programming, is subject to review. We strongly disagree that the sponsorship statement that follows the CTV programming is in breach of the regulations.

Mesley: So let’s get this straight. Glaxo was arguing that Carol’s anti-smoking testimonial was not part of a Zyban ad, it was programming, like an information show. And that CTV was fully in charge of producing it. Glaxo’s only responsibility, it says, was that two second flash at the end, “brought to you by Zyban”, which is allowed. How new an angle is it that the broadcasters are getting involved in finding creative ways of helping the pharmaceuticals?

Chepesuik: Well that’s new. You know, there hasn’t been an issue like this with respect to television, you know, it’s a test for Health Canada.

Mesley: Have you been contacted by CTV about what sort of advertising they could do with pharmaceuticals?

Chepesuik: Yeah. They have asked for some advice on what was the law. And this was well over a year ago. And we went through the various scenarios. What if, you know, we did this? Is this in contravention?

Mesley: What do you think’s driving them?

Chepesuik: People pay for advertising, and advertising runs television companies.

Mesley: In fact, Chepesiuk says, his staff attended a pharmaceutical marketing conference where a CTV rep was a guest speaker.

Chepesiuk: They were trying to incite the industry into looking at television as a medium to advertise drugs.

Mesley: So the message was, why aren’t you guys pushing the limits here?

Chepesiuk: More or less. Well, not pushing the limits, but why aren’t you advertising on television?

Mesley: So looks like somebody took her up on the offer.

Chepesiuk: Well, they have, you know, Glaxo is advertising on CTV, yeah.

Mesley: What about CTV? Did Health Canada contact anybody there? Nope.

Duncan: In this instance, perhaps we just felt that it was clearly Glaxo Wellcome’s ad.

Mesley: You told them to take the ads off the air immediately?

Duncan: Mm-hmm.

Mesley: They didn’t. Why didn’t you take them to court? Why didn’t they follow up?

Duncan: The standard process is to follow through a compliance and enforcement procedure. We always issue a warning letter before we go to the next level, which is prosecution.

Mesley: Have you ever prosecuted anyone?

Duncan: I would have to review our files on there.

Mesley: They were ordered to pull the ads immediately, and they didn’t. Is that unusual?

Chepesiuk: Yes. Yeah. I haven’t seen any company not comply with the Health Canada ruling. And that’s a first for me.

Mesley: And a first for Health Canada. Another six weeks go by and the bureaucrats in Ottawa are fussing over an unprecedented second letter. Fay Pierce, who again has to draft the response, seems to be getting very frustrated.

Pierce letter: Subject, re: Zyban letter. Frankly, I don’t care. We seem to have taken five steps forward and four steps back. I’ll sign anything.

Mesley: Finally, April 27th, the second letter goes out.

Pierce: The subject ads must cease airing. Please confirm in writing Glaxo Wellcome’s intention to comply within two weeks of reception of this letter.

Mesley: Two weeks later, on May 10th, Glaxo Wellcome’s laywer complies.

Glaxo Wellcome letter: We have carefully considered your views but maintain the position set out in our letter dated March 9th, 2000, that the informational messages do not violate subsection c.01.044(1) of the Food and Drug regulations. Notwithstanding the foregoing, we can advise you that the informational messages on CTV have ceased to air.

Mesley: So they got away with it?

Duncan: In this instance they, the dialogue that carried out between the two parties resulted in a situation where, yes, they finished their advertising period prior to resolution of the issue.

Mesley: What message is the industry going to get from this?

Duncan: That the kind of material that was put on air by CTV in relation with Glaxo Wellcome was not compliant and that kind of ad cannot occur.

Mesley: But it kept running the whole time. You couldn’t make them take it off the air.

Duncan: That’s correct, yes.

Mesley: We made repeated efforts to get Glaxo Wellcome to talk to us on camera. But no luck. And what about CTV’s role in all of this? Well, they wouldn’t talk to us on camera either, saying it wasn’t relevant. And besides, they said, the Zyban spot was not an ad, it was an anti-smoking vignette sponsored by Zyban. Then, over the holidays, new year’s resolution time, guess what’s back on CTV?

TV AD: I tried. It’s been an accomplishment. It’s been my Mount Everest.

Mesley: They’re back?

Duncan: Yes.

Mesley: So now what happens? What are you doing?

Duncan: We have initiated an investigation.

Mesley: Another one?

Duncan: Yes.

Mesley: So they changed the words a tiny bit and they get to start the whole game all over again?

Duncan: Um, they get to, they get to go through an investigation process with us again. Yes, they do.

Mesley: They’re not treating you very seriously.

Duncan: We will carry out the investigation, and if non-compliance is a problem, with this firm and this ad again, we have those tools available to us that are there in the act. And that includes prosecution.

Chepesiuk: Ultimately there’s a stand-off between Health Canada and Glaxo Wellcome, the pathway is to the court system.

Mesley: Who’s got the bigger guns?

Chepesiuk: Well (laughs) we’ll have to find out, you know.

Mesley: Where are you putting your money?

Chepesiuk: Well I’m not a betting person.