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Medicines advertising and unfair competition in Ukraine

April 2019 - Corporate & Commercial. Legal Developments by DLF attorneys-at-law.

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In Ukraine, advertising of medicines represents the largest share in terms of volume both on TV and Internet. Advertisers are increasingly struggling to attract the attention of older advertising consumers, strongly influenced by advertising as they trust the advertising messages they see, read or hear and do not seek advice from a doctor. At the same time, an important role is played by the advertiser’s strict adherence to the advertising law requirements for protection against unfair competition when creating and placing advertisements related to medicines and medical products, etc.

In Ukraine, special attention to the pharmaceuticals advertising is paid by the controlling state bodies since Law of Ukraine On Advertising defines clear requirements for information that shall be contained in medicines advertising in Ukraine.

Requirements for medicines advertising

According to Ukrainian advertising laws, unfair advertising shall be prohibited. The liability for unfair advertising shall be borne by a guilty person, who in this case may be the advertiser. The decision to recognize advertising as unfair shall be taken by the state authorities – the Antimonopoly Committee of Ukraine.

In Ukraine, medicines advertising is permitted providing the medicines are sold without a doctor’s prescription and not included in the list of medicines prohibited for advertising by the Ministry of Health of Ukraine.

Medicines advertising must contain only accurate information about the respective pharmaceuticals. Medicines advertisements in television commercials or on web banners must contain the following legal disclaimers:

1) requirement to consult a physician before using the respective medicinal product;

2) recommendation to read the instructions for the medicinal product;

3) the following text: ‘Self-medication may be harmful to your health’, which must occupy at least 15 percent of the total advertisement area (time).

Dissemination of medicines advertising without such indications, as required by the advertising laws, is a violation for which the competent state bodies may impose on the advertiser a fine of five times the cost of such advertising dissemination.

It should be noted that the medicines advertising may not contain: claims that the therapeutic effects of taking medicines or using medical products are guaranteed, visual representations of changes in the human body or parts caused by illness or injury, images and names of famous people, movie, television and cartoon characters, reputable organizations.

Moreover, when creating medicines advertising, in particular design, advertising text, legal disclaimers, slogans, trademark images, etc., it is necessary to pay attention to the requirements set out in Article 15-1 of Law of Ukraine On Protection against Unfair Competition (Dissemination of misleading information). Pursuant to this provision, the dissemination of misleading information is the provision by the advertiser, either directly or through another person, of incomplete, inaccurate or false information to one or several persons or to the public, including through advertising, in particular due to the chosen method of presentation, omission of certain facts or lack of language clarity,, which has influenced or may influence the intentions of those persons to buy (order) or dispose of (sell, supply, perform, provide) goods, works, services of the economic entity concerned.

Misleading information includes, in particular, information that: contains incomplete, inaccurate or false data about the goods origin, manufacturer, seller, production method, source and manner of purchase or sale, quantity, consumer properties, quality, completeness, suitability for use, standards, characteristics, specifics of the sale of goods, works and services, prices and discounts, as well as the essential terms of the contract; contains incomplete, inaccurate or false data about the entity’s financial condition or business activities; attributes non-possessed powers and rights or non-existing relationships; contains references to the volume of production, purchase, sale or supply of goods, execution of works and provision of services which is actually non-existent on the day of information dissemination.

Typical violations in medicines advertising

The most widespread violations in the pharmaceuticals advertising are the use by the advertisers of assurances of consumers, in particular, on ‘drug efficacy’, ‘the best quality of the advertised medicines’, etc.

Violations by undertakings involved in medicines advertising of the above legal requirements for protection against unfair competition may entail a fine of up to five percent of the turnover (proceeds) of the undertaking from the sale of products (goods, works, services) for the last reporting year preceding the year in which the fine is imposed.

A striking example of the competition law violation was an advertisement of the food supplement Shilentin stating ‘Say No to Cancer’, that is, alleging that it can cure such a serious disease, as cancer. However, the report of the State Sanitary and Epidemiological Expertise stated that Shilentin is not a medicinal product. Therefore, the advertisement in question was an example of misleading advertising.

For instance, in one of the most headline-making cases, the Antimonopoly Committee of Ukraine asserted that one of the world's 20 top pharmaceutical companies when advertising its cough medicine (Lasolvan) made a television advertisement broadcast on Ukrainian channels that had the potential to mislead consumers as to its therapeutic effect. This commercial conveyed the statement ‘Lazolvan will cure your cough and free your breath’ – both in audio and visual form, strengthening the advertising effect. According to the Committee’s findings, the advertising information disseminated with regard to the pharmacological properties of Lasolvan was inaccurate and misleading because when watching the advertisement, advertising consumers had an impression that this medicinal product completely cures such acute and chronic respiratory diseases as influenza, cold, acute and chronic bronchitis and pneumonia. In fact, Lasolvan is a mucolytic, that is, a drug, aiding in the clearance of mucus from the airways. Thus, the advertisement had the potential to mislead consumers.

Heavy fines that may be imposed by the Antimonopoly Committee of Ukraine have become an impetus for careful and thorough selection of advertising information in creating medicinal drug advertisements. Advertisers and drug manufacturers have, to a large extent, started to carefully review the promotional materials content to provide consumers with reliable information about over-the-counter drugs advertised.

Summary

When advertising medicines, advertisers always need to consult a qualified lawyer specializing in advertising law and protection against unfair competition in order to get legal advice and clarifications whether the medicines advertising content complies with the requirements stipulated in Laws of Ukraine On Advertising, On Protection against Unfair Competition and other statutory acts.

Only strict adherence to the advertising law requirements and lawyers’ advice will prevent the advertiser from engaging in unfair competition and committing advertising law violations and will help avoid heavy fines that may be imposed by the competent authorities.

It should be noted that the Ministry of Health of Ukraine suggests amending the Ukrainian advertising laws, namely, new restrictions in the advertising content in accordance with the EU directives. In particular, it is a prohibition of links to advertising of the disease diagnosis or the treatment appointment via the phone or Internet, the prohibition of information that medicines are intended exclusively for the treatment of children.