Canadian DTC in the US

J0314086 Yesterday, I heard something I never heard before.  While listening to my commercial radio station as I was driving into work, I heard an advertisement for, not one drug, but any prescription drug.  The commercial was for home delivery of prescription medications.  But the unusual thing about the ad was not that it promised lower costs of nearly 80% savings, but that the drugs being offered under the home delivery program were coming from Canada, not the United States.  While I was of course aware of Internet based sales efforts, I realized I had never before seen or heard Direct-to-Consumer advertising targeting U.S. customers to purchase drugs from Canadian pharmacies. 

It would seem that if it were regulated, that would have to occur through the Federal Trade Commission, not the FDA, since it is not product specific.  However, an Internet search using various terms did not yield anything on the subject.  I’d be curious if anyone knows of any body of though on any regulatory theories or realities that address the situation.

But the existence of such advertising, whether or not it continues, raises some interesting possibilities.

  1. A re-ignition of the importation issue as we head into the election cycle, coupled with
  2. The bulk of seniors who will be hitting the "donut hole" (more appropriately called pot hole I think) of the new Medicare prescription drug benefit could spark renewed interest in cheaper alternatives, and
  3. A larger migration of the market into Canadian pharmaceutical, which, one would think, would have an impact on supply in Canada, thus driving up the cost, and finally
  4. Questions could be entertained in the public debate about whether or not such advertising is an unfair trade practice whereby "dumping" of a cheaper product by a foreign country is occurring in the U.S. market.  If it is a matter of dumping, particularly if there are foreign price controls in foreign countries, what are the regulatory obligations?  While a lawyer, this is not my specialty so on this point I may just be blowing smoke.

If the first two would occur in concert, then the entire point of the Medicare Drug Benefit – to offset interest in importation, will be lost.  It is interesting that such advertising is occurring so close to the time when it is perceived many will enter the abyss of the donut hole.

In any case, it was a thought provoking advertisement, in more ways than one. 

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