For Them to Know and You to Find Out: Challenging Restrictions on Direct-to-Consumer Advertising of Contraceptive Drugs and Devices

Rhonda R. Shirreff

ABSTRACT

Women currently depend on medical professionals for information about contraceptive drugs and devices. In order to have informed conversations about their choices, women need access to more information about the options available to them. One possible source for this information would be the pharmaceutical companies themselves, who are currently prohibited from advertising their products directly to consumers under the provisions of the Food and Drugs Act. These provisions could be challenged under the Canadian Charter of Rights and Freedoms on the basis that they infringe three separate rights: the s. 2(b) right to freedom of expression; the s. 7 right to life, liberty and security of the person; and the s. 15 equality provision. This article focuses on s. 2(b) as the most likely to succeed both from a legal and practical point of view. It further canvasses the potential arguments under a s. 1 analysis, and concludes that the current law is unlikely to be saved as a reasonable limit in a free and democratic society. Although the courts have been willing to accord deference to the government's policy choices where the social science evidence is complicated, this would be inappropriate where the provisions have such strong implications for a woman's right to equality, autonomy and self-development.

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Citation: (2000) 58(2) U.T. Fac. L. Rev. 121.
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