Contributed By Walder Wyss Ltd
Commercially and economically justified discounts that directly reflect on the price of the medicine are permitted (Article 33 paragraoh 3 lit. b HMG).
Economically justified rebates are rebates where the buyer provides an economic counter-value. Examples include purchase orders placed by the buyer via the internet, which save the supplier administrative and logistical costs, the handling of transport by the buyer or the purchase of large quantities, which relieves the supplier of storage costs. In contrast to an economically justified rebate, a commercially justified rebate is granted independently of a consideration from the customer. A rebate is commercially justified if it is granted over a certain period in a specific business relationship, so that both parties assume that it also applies in the future. In such a case, the discount no longer has any influence on the purchase decision. Discounts that are commercially justified can also be benefits that are granted upon the introduction of a new product or to acquire new customers or that serve to maintain the existing clientele with regard to new competing products.
Swiss courts have held that a rebate of 33% for one month to introduce a new medicine was exceptionally high, whereas a rebate of 1–25% was economically and commercially justifiable (Decision of the Federal Criminal Court BV.2005.28 of 28 November 2005 consid. 2.2; Decision of the Federal Administrative Court C-669/2008 of 17 December 2010 consid. 5.5.4).
Healthcare professionals must, in any case, pass on direct or indirect financial advantages granted to them by pharmaceutical companies to patients or healthcare insurances with regard to medicines covered by compulsory healthcare insurance (Article 56 paragraph 3 lit. b KVG).