Prohibition on the advertising of medicinal products: It is difficult to see arguments

20.03.2017 Prohibition on the advertising of medicinal products: It is difficult to see arguments

Erika Dubovskytė, Senior Associate at law firm TGS Baltic Medicine and pharmacy regulation has currently become very popular among politicians.

The new initiatives for amending laws range from artificial insemination to the reimbursement of medicinal products. It is understandable that this field is important (in particular for socially vulnerable groups of citizens); therefore, the subject is potentially favourable for the self-promotion of politicians. Nevertheless, at least minimum rationality criteria should be applied event to populist projects.

The aim of the new amendment to the Pharmacy Law is a complete ban on advertising and promotion of medicinal products to citizens. It should be noted that currently advertising of medicinal products is already subject to serious restrictions: only advertising of non-prescription medicinal products to citizens (subject to additional restrictions) is permitted, while the advertising of prescription and reimbursable medicinal products to residents is generally prohibited.

The promoters of amendments to the Pharmacy Law point out that the amendments would purportedly solve problems related to the fact that the vast majority of people choose medicines according to the quantity of advertising and their own internal understanding, but fail to consult the doctor or the pharmacist as to their use and possible side effect.

It should be observed that considerations on the problem and its solutions presented by the authors of the draft law are not based on any objective data. Although amendments to laws which affect the economic conditions countrywide should be based on a comprehensive analysis. For example, are such prohibitions generally applied in other Member States of the European Union? How could the application of prohibitions positively affect the use of medicines / the health of the population? What is the basis of the opinion that residents are not consulted by doctors or pharmacists (in particular, given that the duty to provide such information to residents is provided for in legislation)?

Furthermore, it would be appropriate, before registering the draft law, to carry out at least an initial analysis of the compliance of the amendments proposed to the country’s fundamental law – the Constitution. Here attention should be drawn to the conclusion of the Legal Department regarding the respective amendments to the Pharmacy Law. In its conclusion, the Legal Department gives a detailed explanation why the amendments proposed, inter alia, violate the principles of freedom of economic activity and information entrenched in the Constitution.

In addition to the above mentioned essential failures of the draft law, a technical aspect of law should also be noted. It might seem that it is not so significant, but it certainly shows the draft promoter’s approach to the law-making process in general. Following the amendments to the Pharmacy Law, no in-depth review of relevant legislation has been done; therefore, the permission of advertising of medicinal products still remains not only in other legal acts but also in other parts of the Pharmacy Law (with respect to which legal regulation becomes ambiguous). Not to mention that the proposed draft law aims at prohibiting advertising not only of medicines but also of food (food supplements) (which, the lawyers will understand, is not the subject of regulation of the Pharmacy Law in general).

In the light of the above aspects, it is difficult to see the initiative to ban the advertising of medicinal products as the legislator’s intention to look more closely into the root causes of the problem and solve them.