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Advertising non-prescription medications or Biologically Active Supplements (BAS)

October 2015 - Intellectual Property. Legal Developments by Goltsblat BLP.

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Advertising non-prescription medications or Biologically Active Supplements (BAS) using prescription medications names and packaging designs declared unlawful by Russian Federal Antimonopoly Service 

Yana Pylaeva 

Senior Associate (IP and advertising), Goltsblat BLP 

In March 2015, the Federal Antimonopoly Service Commission delivered two landmark decisions recognising as unacceptable so-called surrogate advertising of prescription medications by promoting non-prescription products under ‚Äúumbrella‚ÄĚ brands. 

Advertising non-prescription medications or Biologically Active Supplements (BAS) using prescription medications names and packaging designs declared unlawful by Russian Federal Antimonopoly Service 

Yana Pylaeva 

Senior Associate (IP and advertising), Goltsblat BLP 

In March 2015, the Federal Antimonopoly Service Commission delivered two landmark decisions recognizing as unacceptable so-called surrogate advertising of prescription medications by promoting non-prescription products under ‚Äúumbrella‚ÄĚ brands. 

Background 

The relevant decisions were rendered on cases instigated in 2014 on the basis of applications by Roche-Moscow Ltd. claiming that its competitors‚Äô promotional activities, although formally legal, gave rise to an abrupt increase in sales of their weight-loss prescription prod¬¨ucts prohibited from open advertising. 

In its applications Roche-Moscow Ltd. referred to actual breach of the adver¬¨tising legislation in the advertisement for BAS ‚ÄúReduxin LITE‚ÄĚ (distributed by MedPro), in the first case, and in the advertisement for BAS ‚ÄúORSOSLIM‚ÄĚ and non-prescription medicine ‚ÄúORSOTEN SLIM‚ÄĚ (both promoted by KRK–ź Pharma), in the second case. All the mentioned products were aimed at weight-loss and were actively pro¬¨moted by their manufacturers in TV commercials and in printed and Internet advertisements under a name and in packaging confusingly similar to those of the prescription medications  ‚ÄúReduxin‚ÄĚ and ‚ÄúORSO-TEN‚ÄĚ, respectively, the advertising of which is restricted by virtue of part 8, article 24 of the Federal Law ‚ÄúOn Advertising‚ÄĚ. 

Arguments put forward by Defendants 

In the cases under consideration, the Defendants asserted that the legislation did not prohibit non-prescription medicines or BAS from being registered under names similar to those of prescription products and that their activities were, therefore, compliant. Furthermore, they endeavored to convince the members of the FAS Commission that the main objective of the advertisement under consideration was to promote the relevant BAS and the non-prescription product actually sold on the market independently of the analogous prescription products. 

The FAS position 

In both cases considered by the FAS, Roche-Moscow Ltd. managed to prove that, since the sphere of application of the non-prescription and prescription products were identical, advertising of one of these caused consumers to develop a strong association with the other and, consequently, led to unavoidable promotion of the brand that was originally used specifically for prescription medicines. As the Russian FAS notes, this was the result of the names and packaging designs of the prescription and non-prescription products being virtually identical in all aspects (general design solution, identical fonts, coinciding visual elements), this preventing consumers from distinguishing between the two. 

It should be noted that, in rendering its decisions, the FAS Commission was guided by the results of sociological surveys conducted by the Russian Public Opinion Research Centre, as well as the position of the Russian FAS‚Äôs Expert  Councils for Applying the Legislation on Advertising and for Developing Social Sphere and Healthcare Competition, which, at their joint session in December 2014, recognized the ‚ÄúReduxin LITE‚ÄĚ and ‚ÄúOrsoten slim‚ÄĚ and ‚ÄúOrsoslim‚ÄĚ advertisement as running counter to the legislation. It is important to note that representatives of the Federal Service for Supervision of Consumer Rights Protection and Human Welfare, the International Advertising Association, a number of not-for-profit associations of BAS manufacturers and major pharma-ceutical companies also participated on the above Expert Councils. 

Practical implications 

Yet, the cases considered by the FAS of the Russian Federation are momentous in nature and have clearly drawn the attention of government authorities to the flaws in the legislation on circula¬¨tion of medicines and BAS, which is why, in the near future, we are likely to see the Russian FAS becoming more actively involved in regulating the registration and advertising rules for medicines and BAS at the level of new legislative initiatives.