To ban or not to ban: direct-to-consumer advertising and human rights analysis

The issues surrounding Direct-To-Consumer Advertising of pharmaceuticals are ripe for scrutiny through the lens of Human Rights analysis. Among the human rights most decisively engaged by DTCA is the right to autonomy in healthrelated decision making, which in turn incorporates right of access to health-related information. The latter incorporates, in part, right of access to reliable and beneficial information through the avenues of commercial speech among others. Another crucial human right is the right not to be harmed by unsafe consumer products through corporate malfeasance or negligence. The most commonly invoked policy options in the context of DTCA are either an outright ban or strengthening regulatory oversight in combination with voluntary guidelines. Banning Direct-To-Consumer Advertising risks being both over inclusive and under inclusive as a policy option. A wholesale ban risks being over inclusive in that it could deprive consumers of information about medications with a positive benefit-risk profile, ones that could enhance their quality of health and well being. Thus it risks being overly paternalistic. Banning DTCA, by itself, is under inclusive in that it is insufficient to address the ways that unadvertised drugs can pose significant risks to consumers. Other policy measures would be most optimal to deal with the very serious deficits in the processes by which prescription drugs undergo clinical trials, and garner regulatory approval prior to their promotion in the marketplace. A more finely tuned approach to regulatory oversight is endorsed, one involving a proactive and precautionary approach reliant upon prior approval. Such an approach could help to address the very serious concerns about potential infringements of the human right not to be harmed by unsafe consumer products through corporate malfeasance or negligence