Medicines advertising and unfair competition in Ukraine

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.

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