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Medical Forum / General / General / July 2005drug marketing upstaging science
Drug marketing is upstaging science Advertising is an effective business tool. It sells products. That's why companies spend billions of dollars each year on drug marketing budgets - a lot more than is spent on drug research and development. by Ellen Reynolds June 27, 2005 It seems that even when we do know history, we're destined to repeat it. In 1948, diethylstilbestrol (DES) was advertised as the "wonder drug" recommended for all pregnancies. The smiling face of a cherubic infant peered out from the pages of medical journals next to the caption "Really? Yes, desPLEX to prevent abortion, miscarriage and premature labour...bigger and stronger babies too." Advertising works. It worked for DES, which was prescribed to an estimated 200,000 to 400,000 pregnant women in Canada between 1941 and 1971. Despite scientific evidence from 1952 that proved DES did not prevent miscarriage, this harmful drug was advertised and prescribed for 18 more years. Only after it was linked to cancer in the daughters of women prescribed DES was it finally restricted for use in pregnancy. Those exposed to DES continue to face the effects of infertility, reproductive abnormalities and cancer decades after initial exposure. But that was over 30 years ago. Surely we've learned that prescription drug advertising needs careful regulation. Apparently not. We only have to look at the recent news surrounding the arthritis drug Vioxx that is credited with causing thousands of extra heart attack deaths. During its five years on the market, its manufacturer, Merck, spent around US $500 million advertising the drug to the U.S. public. Vioxx was no more effective than other similar drugs to treat arthritis symptoms, it was a lot more expensive, and turned out to be much less safe. We've just observed DES Awareness Week - June 20 to 26. It's time to remember the DES legacy, including the lesson that prescription drug marketing cannot continue to upstage science. Back in the '50s and '60s, doctors were the target for most drug advertising. Direct-to-consumer advertising of prescription drugs wasn't permitted in any form in Canada. We can only imagine how many more people would have been exposed to DES if it had been promoted on television, billboards, bus shelters, newspapers and magazines as prescription drugs are today. What many people don't realize is that direct-to-consumer advertising is still illegal in Canada, as it is in almost all industrialized countries of the world, with the exception of the United States and New Zealand. The reason we are bombarded with drug advertising in this country is that Health Canada isn't adequately enforcing the law and companies have rushed to take advantage of this situation. Most of us have seen the ads that slip past the border in American magazines and on cable television. But prescription drug ads created for a Canadian audience are slightly different. A 1978 amendment to the Food and Drugs Act was introduced to allow consumers to compare drug prices. Advertisers were permitted to post the drug's name, price and quantity as long as they made "no other representations." However, in November 2000, citing the 1978 price advertising clause, Health Canada published a policy paper saying that companies could advertise prescription drugs as long as they didn't include the drug's name and information on its intended use in the same ad. The law hadn't changed - just its interpretation. Needless to say, drug companies are taking advantage of this legal loophole to introduce more and more direct-to-consumer advertising. And Health Canada is letting it happen. So we see "help-seeking ads" that encourage the public to call a 1-800 number if they're suffering from obesity, high blood pressure, high cholesterol, erectile dysfunction, etc. Or branded ads that name a drug but don't refer directly to the condition it treats - such as the not-so-subtle Viagra ads which feature its recognizable brand coupled with a heavy dose of sexual innuendo. Neither type of ad fits with the intent of the Food and Drugs Act. In April 2004 in the report Opening the Medicine Cabinet, the Standing Committee on Health admonished Health Canada for a lack of enforcement and vigilance. Among other recommendations to increase transparency and improve post-market surveillance of prescription drugs, the Committee stated that Health Canada should enforce The Food and Drugs Act by enforcing the ban on direct-to-consumer drug advertising. Yet, as part of the current legislative renewal process at Health Canada, the department is proposing the exact opposite - legalization of direct-to-consumer advertising of prescription drugs as a form of public "information." Advertising is an effective business tool. It sells products. That's why companies spend billions of dollars each year on drug marketing budgets - a lot more than is spent on drug research and development. But advertising does not provide reliable public information. Prescription drug ads are often misleading. They downplay the risks, exaggerate benefits and imply that drugs may be used to treat a wider range of conditions than they are approved to treat. The ads also focus mainly on the newest drugs available - drugs that are usually more expensive and not necessarily the most effective or safest choice. The Vioxx example proves the point once again. With celebrity endorsements, free trial offers, and emotive imagery suggesting complete relief, was the public really being "informed" or "educated"? Let's call a spade a shovel and quit heaping illegal advertising down the throats of Canadians who are simply looking for reliable drug information. Let's learn from the mistakes of the past and take our cue from most other industrialized nations of the world where direct-to-consumer advertising continues to be illegal. Look to the European Parliament where an attempt to introduce direct-to-consumer advertising in 2002 was soundly rejected in the name of public health. Parliamentarians voted overwhelmingly against legalizing direct-to-consumer advertising and stated that the pharmaceutical industry was "incapable of providing impartial information on its medicines." When will Health Canada come to the same logical conclusion? It's time to stop this drive to legalize direct-to-consumer advertising of prescription drugs in Canada - before it's a done deal. Ellen Reynolds is project coordinator at DES Action Canada and lives in Victoria, B.C. With background from Dr. Barbara Mintzes, drug researcher and vice-president of DES Action Canada Fair Use That article, which you reprinted in full without analysis or comment of any kind, is from http://www.rabble.ca/news_full_story.shtml?x=40120 . Are you sure that's "fair use"? I rarely comment on an article I post. I let the fine writers and authors of what I post say it themselves. But by posting, I hope I give something to the group to read, discuss, provoke thought. It is educational, and is posted to an educational forum. At best that is what newsgroups are. This particular newsgroup is *often* that. Zee >I rarely comment on an article I post. I let the fine writers and >authors of what I post say it themselves. But by posting, I hope I give >something to the group to read, discuss, provoke thought. It is >educational, and is posted to an educational forum. At best that is >what newsgroups are. This particular newsgroup is *often* that. You also violate copyright... -------------------------------------------------------- "He uses statistics as a drunken man uses lampposts--for support rather than illumination." Andrew Lang > Drug marketing is upstaging science > [quoted text clipped - 39 lines] > remember the DES legacy, including the lesson that prescription drug > marketing cannot continue to upstage science. My mother had multiple miscarriages before high risk OB/GYN put her on DES, likely before the adverse research per this article (since I was born in '53). I was the first one to live. There were four more pregnancies resulting in two miscarriages and two healthy children (also sons). You'd expect that about half would have been daughters, I imagine that those lost to miscarriages after DES would have been my sisters. The report doesn't go into the detail about the reproductive tract problems of the DES children. The DES daughters have it much worse with higher incidence of cancers including cervical whereas the DES sons mostly see moderate increases of mostly benign conditions. None of this was known when the stuff was being hyped. It is interesting to remember this in light of the US & Canada's Pharma situation. Salute to the OB/GYN who came out of retirement to inform his patients to whom he'd given DES decades earlier. Thanks to zee for the post which I would not have seen. If it matters to CA law, I can't imagine that the publishing org was harmed by your post (it more likely helped). Ed You're welcome. There are others who are DES children posting and reading to this newsgroup. I heard from them; I recognized their posting addies when they came in. Lots of information here. Canadian or American, the facts apply equally. http://www.web.net/~desact/ Zee In response to your comment regarding copyright. Most people are woefully misinformed about this perhaps thinking they are protecting the writer in his/her cold garrett (or actually is the writer in his/her cold garrett but still woefully misinformed). Nothing could be further from the truth. They are in fact making sure the writer freezes to death in that garrett while Lord Conrad Black banks another billion. FAIR US This site contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. We are making such material available in our efforts to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner. http://www.law.cornell.edu/uscode/17/107.shtml says: -------------------- In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. -------------------- I'll give you the benefit of the doubt on the first two. For a better idea on how to consider the above factors, I consulted http://www.library.northwestern.edu/reserve/copyrightbasics.html which says "Several university web sites present fair use checklists that may help you apply the fair use doctrine to individual cases." I clicked "University of Texas Fair Use Rules of Thumb" ( http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm#test ). The rules of thumb page lists the four fair-use factors, with some example uses under each. "Uses on the left tend to tip the balance in favor of fair use. The use on the right tends to tip the balance in favor of the copyright owner - in favor of seeking permission." In the example uses for "FACTOR 3: How much of the work will you use," "small amount" is on the left and "more than a small amount" is on the right. The explanation of factor 3 says "A nonprofit use of a whole work will weigh somewhat against fair use." It looks like factor three is against you. The three example uses for "FACTOR 4: If this kind of use were widespread, what effect would it have on the market for the original or for permissions" are as follows: Left: After evaluation of the first three factors, the proposed use is tipping towards fair use Center: Original is out of print or otherwise unavailable. No ready market for permission. Copyright owner is unidentifiable Right: Competes with (takes away sales from) the original. Avoids payment for permission (royalties) in an established permissions market. The "right" example fits best again. You republished an article from a commercial website that relies, at least in part, on Google ads for revenue, and you didn't even link to the page. > We are making such material available in our efforts... Who's we? > http://www.law.cornell.edu/uscode/17/107.shtml says: > -------------------- [quoted text clipped - 49 lines] > > Who's we? Well I don't live in the States but it seems to me the site I linked (within my example of a Fair Use tag) is a very good one. However if you disagree I suggest you take it up with them. > Well I don't live in the States but it seems to me the site I linked > (within my example of a Fair Use tag) is a very good one. > > However if you disagree I suggest you take it up with them. The particular page you linked to provides the four fair use factors and little else. The page I linked to provides the four fair use factors too, but takes it to the next level with details that make it easier for the reader to interpret the factors. For example, it states: -------------------- With a particular use in mind, Read each question and the comments about it Answer each question about your use See how the balance tips with each answer Make a judgment about the final balance: overall does the balance tip in favor of fair use or in favor of getting permission? -------------------- I have no problem with law.cornell.edu, but to make practical use of United States Code, it helps to have the hand-holding that my links provide. Even for the USC itself, I tend to follow the links on my Government Publications & Legal Documents page at http://www.polisource.com/government-publications-legal-documents.shtml (second paragraph), which point to government webpages. This is usenet. The purpose of usenet is discussion, education, sharing information. My postings here are Fair Use, no matter how you cut it. Other venues other considerations. Zee > > Well I don't live in the States but it seems to me the site I linked > > (within my example of a Fair Use tag) is a very good one. [quoted text clipped - 21 lines] > http://www.polisource.com/government-publications-legal-documents.shtml > (second paragraph), which point to government webpages. >This is usenet. The purpose of usenet is discussion, education, sharing >information. My postings here are Fair Use, no matter how you cut it. > >Other venues other considerations. Nonsense. Where you post something is largely irrelevant. It's either fair use or it's not. As for usenet's lofty purpose, you might want to note that the heaviest traffic by far is in the binaries groups where file sharing is rampant and copyrights are viewed as little more than a joke. By other venues I meant other than usenet. Zee > >This is usenet. The purpose of usenet is discussion, education, sharing > >information. My postings here are Fair Use, no matter how you cut it. [quoted text clipped - 7 lines] > traffic by far is in the binaries groups where file sharing is rampant and > copyrights are viewed as little more than a joke. >By other venues I meant other than usenet. It doesn't matter what you meant. Posting written works in their entirety is not fair use, here or anywhere else. Thank you for your opinion Carey. Zee > >By other venues I meant other than usenet. > > It doesn't matter what you meant. Posting written works in their entirety > is not fair use, here or anywhere else. >> It doesn't matter what you meant. Posting written works in their entirety >> is not fair use, here or anywhere else. > >Thank you for your opinion Carey. http://www.publaw.com/work.html >>>It doesn't matter what you meant. Posting written works in their entirety >>>is not fair use, here or anywhere else. >> >>Thank you for your opinion Carey. > > http://www.publaw.com/work.html Aside from the fact that this is American law and sis is posting from Canada, this link brings up some interesting points. There are four fair use things taken into consideration by the US Courts. They are; # the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; In this case reproduction is in electronic form and is inteded for educational use for discussion # the nature of the copyrighted work; It's available free of charge on the 'net in electronic form. # the amount and substantiality of the portion used in relation to the copyrighted work as a whole; Sis posted the whole thing> and # the effect of the use upon the potential market for or value of the copyrighted work." This is the most interesting one when one is talking about free electronic articles. Do they lose value if they're copied elsewhere? How does this loss of value happen? Does the author get royalties for each hit? How are such royalties calculated? On balance there's a pretty poor case here for fair use violation. This analysis deals strictly with articles that are available to the public on the net for free. >Sis posted the whole thing> Thereby virtually eliminating any claims of fair use regardless of the other factors. Copying an entire article under fair use is a rare exception, and then usually only when used for parody. >On balance there's a pretty poor case here for fair use violation. Quite the contrary. The factors you cite would merely apply to the results the author would likely get in court should he file a complaint. He would be very unlikely to win monetary damages, but a cease and desist order would probably be easily obtained. >>Sis posted the whole thing> > [quoted text clipped - 8 lines] > be very unlikely to win monetary damages, but a cease and desist order would > probably be easily obtained. I doubt it. Injunctive relief like a cease and desist order is only ordered by the courts when damages are obvious and only injunctive relief can mitigate the damages. Since there are no damages here, such relief is most unlikely to be ordered. ># the effect of the use upon the potential market for or value of the >copyrighted work." [quoted text clipped - 3 lines] >does this loss of value happen? Does the author get royalties for each >hit? How are such royalties calculated? They (the owner of the copyright, which may or may not be writer) get paid. WebMD, for instance, syndicates much of my work I did for them. They get paid by the hospital (say) that uses the syndicated stuff on the hospital's website. The stuff gets pushed around the internet in its entirety for free, the hospitals start to wonder why they should pay for it (just one example). >This analysis deals strictly with articles that are available to the >public on the net for free. Available to the public for free.. and you can't see how that might devalue the copyright? -- Beware making fun of science fiction as "science fantasy." Unless of course it contains time machines, FTL drives, force-field "shields", antigravity, Wesley Crusher, or workable libertarian utopias. Then it's okay to laugh all you like. <g>. Steve Harris on sci.med >># the effect of the use upon the potential market for or value of the >>copyrighted work." [quoted text clipped - 10 lines] > around the internet in its entirety for free, the hospitals start to > wonder why they should pay for it (just one example). And the answer is??? everyone should pay for it? Fine. Set a price. Until then, arguing that it acquires some kind of monetary value if it's copied and posted *for free* in another forum makes no sense. OTOH if someone takes your copyrighted article for free and copies it to a site that charges for it, you have a case to take to court. > > [quoted text clipped - 3 lines] > Available to the public for free.. and you can't see how that > might devalue the copyright? I'm not sure what you're arguing for here. It makes the copyright meaningless. > -- > Beware making fun of science fiction as "science fantasy." [quoted text clipped - 3 lines] > you like. <g>. > Steve Harris on sci.med > >># the effect of the use upon the potential market for or value of the > >>copyrighted work." [quoted text clipped - 25 lines] > I'm not sure what you're arguing for here. It makes the copyright > meaningless. I wonder if anyone has asked Roman Bystrianyk his thoughts on this? Roman posts articles to sci.med, in full, daily. Zee Not only have I posted a more complete and better analysis of how American fair use law applies ( http://groups-beta.google.com/group/sci.med/msg/e343625ea428f959 ), but I posted the more applicable Canadian equivalent to America's "four fair use things" ( http://groups-beta.google.com/group/sci.med/msg/2a0022b16e850992 ). In any case, zee aka outrider, doesn't sound interested in a good analysis of the rules, and there's no sense in going on. It's now up to websites who archive these posts to delete the violations, and it's up to the sites being ripped off to take their own action. It would be more productive to contact those entities than to continue discussing law, especially since this is a medical list. > >>>It doesn't matter what you meant. Posting written works in their entirety > >>>is not fair use, here or anywhere else. [quoted text clipped - 36 lines] > This analysis deals strictly with articles that are available to the > public on the net for free. > Not only have I posted a more complete and better analysis of how > American fair use law applies ( [quoted text clipped - 4 lines] > any case, zee aka outrider, doesn't sound interested in a good analysis > of the rules, But of course I'm interested in good analysis. I am reading... Zee and there's no sense in going on. It's now up to websites > who archive these posts to delete the violations, and it's up to the > sites being ripped off to take their own action. It would be more [quoted text clipped - 41 lines] > > This analysis deals strictly with articles that are available to the > > public on the net for free. >This is usenet. The purpose of usenet is discussion, education, sharing >information. My postings here are Fair Use, no matter how you cut it. Actulaly they aren't. At least in the US, there is no case that says taking something in its entirety and stealing it is fair use. The Kinko's case is probably the best known. Kinko's printed articles selected by professors for use in their classes and then bound them into books for the profs to use. Educational, non-profit, etc. However, the Courts held that wasn't fair use since it deprived the copyright holder of money they should have gotten for the reprints. -- Beware making fun of science fiction as "science fantasy." Unless of course it contains time machines, FTL drives, force-field "shields", antigravity, Wesley Crusher, or workable libertarian utopias. Then it's okay to laugh all you like. <g>. Steve Harris on sci.med > -- > Beware making fun of science fiction as "science fantasy." [quoted text clipped - 3 lines] > you like. <g>. > Steve Harris on sci.med COMMENT: Hey! I want my nickel for that! SBH >> -- >> Beware making fun of science fiction as "science fantasy." [quoted text clipped - 7 lines] > >Hey! I want my nickel for that! It is in the mail. The FTL part actually provoked a rather long and heated discussion on alt.books.tom-clancy. Got much further into quantum physics than it should have (g) -- "Never in the history of mankind, has there been an incident recorded where large numbers of people were motivated to go to their windows, fling them open wide, lean out and scream at the top of their lungs: 'I'm as content as Hell and I'm not gonna take it anymore!'" <snip> > I have no problem with law.cornell.edu, but to make practical use of > United States Code, it helps to have the hand-holding that my links > provide. Even for the USC itself, I tend to follow the links on my > Government Publications & Legal Documents page at > http://www.polisource.com/government-publications-legal-documents.shtml > (second paragraph), which point to government webpages. Canadian website, Canadian poster. Of what significance is the application of United States Code? ><snip> >> I have no problem with law.cornell.edu, but to make practical use of [quoted text clipped - 6 lines] >Canadian website, Canadian poster. >Of what significance is the application of United States Code? Copyright is largely ruled by International Convention, so there are usually only minor differences. Having said that, I think Fair Use might be the exception to this rule, since it is probably much more dependent on how local courts interpret than other areas. -- Beware making fun of science fiction as "science fantasy." Unless of course it contains time machines, FTL drives, force-field "shields", antigravity, Wesley Crusher, or workable libertarian utopias. Then it's okay to laugh all you like. <g>. Steve Harris on sci.med > <snip> > [quoted text clipped - 7 lines] > Canadian website, Canadian poster. > Of what significance is the application of United States Code? good question. I don't know if there's even any case law in the US or anywhere in the world about this kind of thing on Usenet or not (filesharing re music is a totally different matter and the kinkos case is not on point - there's no material difference between posting a url to a link and posting the whole thing - authors don't get royalties based on hits), but even if there were, it wouldn't apply to a Canadian posting from Canada. In http://groups-beta.google.com/group/sci.med/msg/243a99a8bab31221 outrider linked to a section of the US Code ( http://www.law.cornell.edu/uscode/17/107.shtml ). There's some information about "fair dealing" in Canada at http://en.wikipedia.org/wiki/Fair_dealing#Fair_dealing_in_Canada . Canada has at least two more factors/criteria in their list than the US: -------------------------------- ...It then establishes six principal criteria for evaluating fair use. 1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights." 2. The Character of the Dealing How are the works were dealt with? Was there a single or multiple copies. Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry? 3. The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing. 4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied? 5. The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair." 6. Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair." A statement that a dealing infringes may not be sufficient, but evidence will often be required. "These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair." -------------------------------- Can you give me the ob/gyne's name? Zee > > Drug marketing is upstaging science > > [quoted text clipped - 64 lines] > org was harmed by your post (it more likely helped). > Ed |
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