Disputes on Health-Related Commercial Advertisements under Consumer Law

Introduction

The Law on
Protection of Consumers No. 6502 (the "Law") is published in the Official
Gazette on November 28, 2013 and entered into force on May 28, 2014. Article 1
of the Law specifies the purpose of the Law as "to take measures that protect the health, safety and the economic
interests of the consumer … in order to inform and educate the consumers in
accordance with public interest". Regulation and supervision of
advertisements are considered as necessary tools to protect consumers. Therefore
the Law includes detailed provisions on advertisements, which are supported by
the secondary legislation, i.e. the Regulation on Commercial Advertisement and
Unfair Commercial Practices (the "Regulation").

Under Turkish
law certain sectors, such as health sector, are subject to additional restrictions
on advertising due to their unique nature and purpose. As a general rule,
health-related commercial advertisements are prohibited under Turkish law through
various pieces of legislation. Administrative sanctions are set to be imposed by
the Advertisement Board on the advertisers, advertising agencies and
establishments broadcasting these advertisements in cases where the
health-related commercial advertisements are considered to be contrary these
restrictions. Since the Advertisement Board's decisions are deemed as
administrative actions under Turkish administrative law, these decisions are
subject to judicial review before administrative courts. The Council of State
rendered many decisions in cases where sanctions on health-related commercial
advertisements are challenged and requested to be annulled, and these decisions
provide further guidance on how the restrictions must be interpreted and
viewed, specifically what makes a health-related commercial advertisement
illegal under Turkish law.

Commercial Advertisement under Turkish
Law

Article 61 of
the Law defines "commercial advertisement"
as "announcements that are marketing
communications made through written, visual, audio and similar methods in any
medium by the advertisers, in order to provide sale or lease of a good or
service, inform or convince target audience in connection with a trade, work,
craft or profession". Scholars argue that there are different definitive elements
in commercial advertisements, such as existence of promotion, commercial aim, intention
to promote, purpose of increasing popularity of a product or service, use of a
medium, and addressing the public, i.e. more than one individual.

Commercial
advertisements are subject to regulations as they are considered to be inextricably
linked to protection of consumers. Article 61 of the Law provides the main
rules regulating commercial advertisements, which are elaborated and supported
by the provisions of the Regulation. Article 77(12) of the Law specifies the
administrative sanctions that may be imposed on advertisers, advertising
agencies and establishments broadcasting the advertisements by the
Advertisement Board in case of non-compliance to the regulations.

Prohibited and Restricted Advertisements
in the Context of Health Sector

Article 61(2) of
the Law provides that commercial advertisements must be in conformity with the
principles adopted by the Advertisement Board, public morality, public order
and personal rights; they also must be honest and true. Commercial
advertisements that deceive or mislead the consumer, or abuse the consumer's
lack of experience or knowledge, threatening the life of the consumer and
safety of consumer's property, encouraging the acts of violence or inciting to
commit crime, endangering public health, abusing the sick, elderly, children or
disabled people are prohibited by Article 61(3) of the Law. In addition to
these general rules, the Regulation provides more specific rules that need to
be observed.

Article 26(1) of
the Regulation titled "goods and services
subject to special rules on advertisement" provides that "advertisements of goods and services that which
are subject to special rules on advertisement, such as … health services …,
must be in conformity with all the other rules on advertisement and promotion
provided in the relevant legislation." Therefore, while examining the
health-related commercial advertisements, specific legislations must be taken
into consideration.

First of all,
medical institutions and medical staff are not allowed to be involved in
health-related commercial advertisements in order to prevent commercialization
of human health and to observe public interest (common good) during the
provision of healthcare services. Article 24 of the Law on Execution of
Medicine and Medical Sciences No. 1219 provides an exception to the prohibition
on medical staff being involved in commercial advertisement. This article
stipulates that medical doctors are allowed to make announcements regarding the
location of their clinic, working hours and their specialization; but they
still cannot make advertisements regarding any other issue. 

Article 60(2) of
the Regulation on Private Hospitals allows private hospitals to make promotions
and inform public only with the purpose of preservation and enhancement of
health. That being said, Article 60(1) prohibits actions and promotions made by
private hospitals that are considered to be contrary to medical deontology and
ethical rules, which could deceive or mislead individuals or aim to increase
demand of individuals or constitute unfair competition vis a vis other private hospitals. In the same vein, Article 29(1)
of the Regulation on Private Medical Centers for Ambulatory Diagnosis and
Treatment explicitly provides that "medical
institutions cannot be involved in advertisement". The Ministry of Health's
Circular on Private Medical Institutions' Informatory and Promotional
Activities No. 2013/15 provides that "Explicit
and implicit advertisements going beyond being informative and promotional
shall be prohibited."

Supervision of Commercial Advertisements
and Sanctions in the Context of Health Sector

The
Advertisement Board has the authority to supervise commercial advertisements
and to impose sanctions of suspension, correction, monetary fine, or precautionary
suspension up to three (3) months in case of non-compliance pursuant to Article
63 of the Law. There are numerous decisions rendered by the Advertisement Board
wherein the Board imposed sanctions on the commercial advertisements made by
medical institutions and/or medical staff that (i) exceed the informatory
purposes, (ii) render the activities of the medical institutions and/or medical
staff as commercial activities, (iii) aim to create demand, and (iv) constitute
unfair competition vis a vis other
medical institutions and/or medical staff. These are the general restrictions
that a health-related advertisement is bound by.

Precedents concerning Advertisements in
Health Sector

Under Turkish
law, the Advertisement Board's decisions are deemed as administrative actions
and it is possible to initiate an annulment lawsuit against the Advertisement
Board's decisions before the administrative courts. Various decisions of the
Administrative Board related to health-related commercial advertisements were
challenged through annulment lawsuits and the Council of State, the highest
administrative court in Turkey, rendered many decisions in these cases, which
provide further guidance on the restrictive rules on health-related commercial
advertisements. Below are just a few of these decisions that could be an
example to what makes a health-related advertisement being contrary to the
allowed framework of such advertisements.

15th
Administrative Chamber of the Council of State, with its decision dated
December 15, 2015 and numbered 2015/8726 E., 2015/8764 K., confirmed an
administrative court's decision wherein it was concluded that mentioning the
contact details of the medical doctors working at a hospital in an
advertisement published in a newspaper makes the hospital's activities seem
like commercial activities.

15th
Administrative Chamber of the Council of State, in its decision dated October
1, 2015 and numbered 2015/4050 E., 2015/5574 K., stated that advertisement
published in a magazine containing statements such as "… the new technology is available at [the name of the hospital]"
and the "before and after" photos of the patients aims to create demand for the
relevant hospital, which renders the relevant hospital's activities as
commercial activities and constitutes unfair competition vis a vis other medical institutions.

15th
Administrative Chamber of the Council of State in its decision dated September
18, 2015 and numbered 2015/6917 E., 2015/5437 K. ruled that provision of detailed
description of the treatments provided at a dental clinic by mentioning that
all those treatments are successfully applied by the dentists working at that
clinic and presentation of photos of the clinic was again considered as aiming
to create demand, rendering the clinic's activities as commercial activities,
and constituting unfair competition.

15th
Administrative Chamber of the Council of State in its decision dated December
19, 2011 and numbered 2011/11279 E., 2011/5725 K. ruled that an advertisement that
is published in a newspaper regarding a discount in vitro fertilization procedure
limited with 500 families and gives contact details of the relevant hospital is
contrary to law, as the advertisement aims to increase the demand for the
relevant hospital and commercialize its activities.

15th
Administrative Chamber of the Council of State in its decision dated November
21, 2011 and numbered 2011/1472 E., 2011/4167 K. ruled that the articles published
in a magazine, which states that an hospital receives patients transferred from
another hospital abroad and gives out contact details and opinions of the
medical doctors working at that hospital abroad, is a commercial advertisement
aiming to direct more patients to the hospital and medical doctors receiving
transferred patients.

15th
Administrative Chamber of the Council of State in its decisions dated December
21, 2011 and numbered 2011/12449 E., 2011/5843 K. and dated November 28, 2011
and numbered 2011/12437 E., 2011/4435 K. ruled that an advertisement on
prostate treatment titled "Stay always
young, just like me", which also has the internet address of the relevant
hospital, creates commercial appearance for the relevant hospital and aims to increase
the demand for the relevant hospital.

9th
Administrative Chamber of Ankara Regional Administrative Court in its very
recent decision dated February 9, 2017 and numbered 2017/55 E., 2017/60 K.
ruled that an advertisement suggesting that a public dental clinic to be a
better clinic due to its high quality treatment facilities compared to private
dental clinics directly incentivizes the patients to choose that public dental
clinic, which is contrary to law in terms of restrictions in health-related
advertisements.

In light of all
these decisions, it is possible to say that health-related advertisements are
considered to be illegal if these advertisements promote the health institution
to attract patients, praise a medical procedure by implying that the procedure
brings a positive effect despite that specific effect being irrelevant to that
procedure, create attraction for the health institution by suggesting the
institution is highly preferred, announce discounts on a medical procedure to steer
patients into choosing the institution making that discount, suggest all the
medical procedures are completed successfully in order to create a sense of
confidence and thus patient demand. Surely these circumstances are mere
examples of what constitutes an illegal health-related advertisement and any
circumstance that exceeds the allowed framework of restrictive rules on
health-related commercial advertisements would make the advertisement illegal.

Conclusion

The Law
regulates commercial advertisement through the Regulation. Since the health
sector is subject to special restrictions on advertisement due to special place
in terms of public benefit, specific pieces of legislation become applicable
when a health-related commercial advertisement is in question. As a general
rule, health-related commercial advertisements are prohibited under Turkish law
except for those aiming to inform the individuals. The Advertisement Board
rendered many decisions in cases where health-related commercial advertisements
are found (i) exceeding the informatory purposes, (ii) rendering the activities
of the medical institutions and/or medical staff as commercial activities,
(iii) aiming to create demand, and (iv) constituting unfair competition vis a vis other medical institutions
and/or medical staff. The local administrative courts and the Council of State
have adopted the same criteria while examining the legality of a health-related
commercial advertisement by considering unique dynamics and specifics of each
case.

Authors: Gönenç Gürkaynak, Esq., Tolga Uluay and A.
Bahadır Erkan, ELIG, Attorneys-at-Law

(First
published in Mondaq on December 5, 2017)