[lit-ideas] Re: Canadian courts weigh drug-advertising changes...

  • From: "John McCreery" <john.mccreery@xxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Tue, 13 Jun 2006 22:33:25 +0900

On 6/13/06, Ursula Stange <Ursula@xxxxxxxxxx> wrote:

It boils down, I think, to which "right' trumps which.  Is it more
important to satisfy the media's 'right' to print and air what they want
(even if, in this case, their clearly stated motive is profit)?  Or is
it more important to protect the community's 'right' to keep health care
affordable (if in fact, the law against direct to consumer advertising
does that)?   At bottom it's a philosophical issue.

In this connection, allow me to recommend Robert Kuttner (1996)
Everything for Sale: The Virtues and Limits of Markets. Chicago:
University of Chicago Press.

Kuttner builds a strong case for distinguishing between markets based
on the urgency of need and the buyer's ability to make rational
choices. Thus, for example, soft drinks are a sector in which letting
market forces run loose may expose some consumers (those who guzzle
large quantities of heavily sugared liquid) to ill effects. But
consumers standing in front of soft drink vending machines or pushing
shopping carts through supermarkets are (1) not compelled to buy soft
drinks instead of fruit or vegetable juices and (2) the risks of
obesity and ill-health are relatively distant ones, allowing time for
rational reflection and calculation. Even here, however, there may be
a case for certain forms of regulation, e.g., prohibiting the sale of
soft drinks in vending machines at schools, on the grounds that
elementary school students both lack the relevant information and the
trained skill in calculation that rational choice assumes.

In contrast to soft drinks, consider emergency health care. Someone
who has suffered a heart attack or massively traumatic accident may be
in no position to choose a doctor or hospital, and being forced to
travel to one covered by their HMO instead of a closer ER may, in
fact, be fatal. The case for universal health care as a positive right
is, in this case, a strong one. Still one may ask, should its benefits
cover such treatments as elective plastic surgeries or drugs for
erectile dysfunction. Here, letting the market rule may be the right

The case in hand is a tricky one. Pharmaceutical companies claim that
they need large profits to fund increasingly expensive research. If,
however, marketing expenses exceed research, production and
distribution costs and result in raising the costs of prescription
drugs vital to the health and well-being or the mitigation of
suffering to people who may not be able to afford them, the case for
banning the advertising that accounts for the larger fraction of the
marketing budget may, indeed, be strong enough to counter the
free-speech claims of corporations, which are, after all, only
artificial persons to whom the ascription of rights is inherently



John McCreery
The Word Works, Ltd., Yokohama, JAPAN

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