The concept of advertising in relation to medicinal products does also cover "unspecified medicinal products"
13 January 2023
In a judgment of 22 December 2022, the Court of Justice of the European Union (the CJEU) clarified the scope of the concept of advertising in relation to medicinal products. The CJEU confirmed that the concept of advertising is very broad and that information regarding unspecified products can also be covered by the advertising concept. Whether such information will be considered as advertising will depend on a specific assessment.
The specific case before the CJEU concerned a Latvian company which owns a number of pharmacies and pharmaceutical retail outlets. The company had launched an advertisement offering a 15% discount on the purchase price of all medicinal products if at least three items were purchased. However, in Latvia, advertising of medicinal products on the basis of price, special sales or bundled sales of medicinal products and other products are banned. Consequently, the Latvian health authorities banned the company's advertising. The company brought an action against the authorities, arguing, inter alia, that the advertising concept of the Medicinal Products Directive (Directive 2001/83/EC) covers only the advertising of specified medicinal products. The court in the national case requested the CJEU for a preliminary ruling.
The CJEU found that the concept of 'advertising of medicinal products' in the Medicinal Products Directive covers "any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption" of medicinal products, "even where that information does not refer to a specific medicinal product, but to unspecified medicinal products". (emphasis added).
With this judgment, the CJEU has thus confirmed that the concept of advertising in the Medicinal Products Directive is very broad and that it can also cover advertising of an unspecified group of medicinal products.
It must depend on a specific assessment of the circumstances whether information regarding unspecified medicinal products actually constitutes advertising, cf. also the Danish guidance to the Danish Advertising Order. Such an assessment should include the content of the message and an assessment of whether the act is intended to promote the prescription, supply, sale or consumption of medicinal products.
In the Latvian case, it seems rather clear that the above activity must be considered as advertising. The information about a 15% discount on the purchase price of all medicinal products if at least three articles were purchased must be considered as encouraging the purchase of more medicinal products and as justifying the need to purchase only by the price.
The CJEU found that the concept of 'advertising of medicinal products' in the Medicinal Products Directive covers "any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption" of medicinal products, "even where that information does not refer to a specific medicinal product, but to unspecified medicinal products". (emphasis added).
With this judgment, the CJEU has thus confirmed that the concept of advertising in the Medicinal Products Directive is very broad and that it can also cover advertising of an unspecified group of medicinal products.
It must depend on a specific assessment of the circumstances whether information regarding unspecified medicinal products actually constitutes advertising, cf. also the Danish guidance to the Danish Advertising Order. Such an assessment should include the content of the message and an assessment of whether the act is intended to promote the prescription, supply, sale or consumption of medicinal products.
In the Latvian case, it seems rather clear that the above activity must be considered as advertising. The information about a 15% discount on the purchase price of all medicinal products if at least three articles were purchased must be considered as encouraging the purchase of more medicinal products and as justifying the need to purchase only by the price.
Want to know more?
Please contact Plesner's Life Science team, if you want to know more about the rules on marketing medicines.
