Nora Sleeth is a JD candidate at Osgoode Hall Law School.
Google’s advertising policy contains a set of guidelines intended to prevent illegal online pharmacies from advertising on the search engine. Adverts for these “rogue pharmacies” have nevertheless been spotted, leading Google to set aside $500 million to settle a potential investigation regarding whether Google aided in online illegal activity.
Until 2010, Google employed PharmacyChecker.com to investigate online pharmacies attempting to advertise through Google. According to the website’s Vice President, Gabriel Levitt, many of the rogue pharmacies advertising on Google never passed through PharmacyChecker. Further, Google has ultimate control over all pharmacy advertisements, regardless of any decisions made by PharmacyChecker.
According to pharmacy regulators, PharmacyChecker’s procedure was insufficient and illegal pharmacies often escaped detection. Google has since abandoned PharmacyChecker in favour of certification by the National Association of Boards of Pharmacy (NABP) or Canadian International Pharmacy Association (CIPA). PharmacyChecker has been subpoenaed to produce records of communications with Google but is not a target in any investigation.
While it is unclear exactly how the illegal advertisements found their way onto Google, it is speculated that Google, motivated by profit potential, may have intentionally ignored “insufficient procedures.” Google and other search engines earn approximately $1 billion from pharmacy and health-related advertisements each year, but roughly 96% of Internet pharmacies are in some way in violation of current laws or regulations. Rogue pharmacies often fail to require prescriptions, do not comply with the standards for controlled substances, and sell fake or tainted drugs.
According to Google lawyer Michael Zwibelman, Google has been taking all necessary steps to combat the rogue pharmacy problem, but a recent report by the Wall Street Journal suggests otherwise. Google was warned about the issue as soon as 2003 when it was contacted by the NABP, which expressed its concern and asked Google not to accept advertisements from unverified pharmacies. In 2006, Google ignored warnings of PharmacyChecker’s inadequacy when it began relying on the site to approve potential advertising pharmacies.
More recently, in 2008, the National Center on Addiction and Substance Abuse at Columbia University contacted Google’s chief executive with concerns regarding the persistent rogue pharmacy adverts. Also in 2008, the NABP sent a second request to Google. Google responded by asking for a list of pharmacies identified by the NABP as illegal, stating that this would aid in combating the problem. Clearly, this response was not successful as rogue pharmacies continued to plague Google.
Further repercussions for Google may include disgruntled investors who do not want to stand by a company that engages in practices they cannot support. Google’s allowance of rogue pharmacy advertisements has been characterized as Google’s attempt to profit at the expense of users. Further, this is not the first time Google’s advertising policies have been questioned. In 2007, Google was fined in response to charges of promoting illegal gambling.
The crackdown on Google for its rogue pharmaceutical advertisements reflects the larger problem of uneven regulation of online corporate conduct. Advertisements for illegal pharmacies are commonplace on the web, yet it appears only high-profile corporations are held liable. Until more effective regulatory policies are enacted (perhaps through ISP regulations), attempts by the NABP to deter sites from displaying such advertisements will have little practical effect.
Regulating ISPs would create serious security risks online.
The regulation of advertising makes sense because Google profits (more so than any other advertising service) from bringing consumers and rogue pharmacies together. With great profit comes the great responsibility to make sure you’re not directly and knowingly facilitating criminal activity.
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