Contributed By Walder Wyss Ltd
In a rather recent decision concerning price agreements and competition law, the Federal Administrative Court had the opportunity to contemplate the effect that the general prohibition of public advertising of prescription medicines has on the transparency of the market with regard to especially comparative prices amongst medicines of the same kind. The process of searching for price information exercised by consumers prior to purchasing requires market and price transparency. The Court stated that the prohibition of public advertising enshrined in Article 32 paragraph 2 lit. a HMG considerably restricts the effective intra-brand price competition in the interest of health protection without completely excluding it. The conclusion of the Court in this respect was that the sales market of a prescription drug cannot be compared with that of a regular consumption good. This decision has been appealed before the Swiss Federal Court (Decision of the Federal Administrative Court B-843/2015 of 19 December 2017 consid. 6).
In another decision the Federal Administrative Court examined the difference between permitted information of a general nature and inadmissible information of an advertising nature. It held that information cannot be qualified in an abstract way, but that its qualification depends on the overall circumstances of the individual case. The magazine advertisements and exhibition stands in the case at hand obviously aimed at promoting the medicine and thus constituted advertising, according to the Court. It further examined the informative quality of those advertisements that are permitted only when directed exclusively at professionals. Incomplete, shortened, factually inaccurate and unspecific slogans violate the provisions of Article 5 paragraphs 1 and 3 AWV. Any information not included in the authorised drug information may not be used in advertising (Decision of the Federal Administrative Court C-5490/2015 of 28 March 2017 consid. 6, 7.1.2, 126.96.36.199, 7.3.6 and 188.8.131.52).
Swissmedic has recently published a statement with regard to approved complementary medicines without indication. Swissmedic has found that advertising to the public of authorised complementary medicines without indication very often does not comply with the relevant advertising regulations. In September 2018, Swissmedic has informed those pharmaceutical companies that market complementary medicines without indication that Swissmedic would in the future specifically check compliance with the relevant advertising provisions even for medicines authorised without indication and, if necessary, initiate according measures. Swissmedic has granted the pharmaceutical companies a period of six months to comply with the advertising provisions. After expiry of this period, Swissmedic will check compliance with the legal requirements on a random basis and, in the event of advertising infringements, will initiate administrative measures to restore the state of law. In the case of intentional violations, criminal proceedings may be initiated pursuant to Article 87 paragraph 1 lit. b HMG.