In light of active harmonising the Ukrainian legislation in force with the legislation of EU, public discussion is currently ongoing with regard to a new Ministry of Health bill on advertising, in particular, to regulate the issue of medicinal products advertising among medical workers. The draft provides for a clear definition of professional medical editions, where advertising of drugs unprovided by law is permitted, as well as the development and approval by the Government of separate rules on advertising of medicinal products aimed at healthcare professionals. In addition, it is proposed to strengthen the monitoring and control of the content of advertising by the Ministry of Health of Ukraine and to establish clear penalties for violation of the Law on Advertising. It should be noted that for the time being, the Ministry of Health is as for now not among the authorities controlling the advertising of medicines/medicinal products in Ukraine.
Two recent cases that also illustrate trends in relation to pharmaceutical advertising in Ukraine are the following:
- The Kyiv Regional Department of the AMCU issued a decision on declaring the actions of the plaintiff (pharmaceutical company) regarding placement on the website of the advertising information about the dietary supplement “Cocoa Butter” as having therapeutic properties, without indicating that this product is not a medicinal product, to constitute violation of the legislation on protection of economic competition in the form of disseminating misleading information by providing false information to general public by an economic entity with regard to consumer properties of the goods. The Plaintiff was fined for this violation. According to the conclusions of the State Sanitary and Epidemiological Examination, “Cocoa butter” is a product of the food industry and its scope of use is in catering and nutrition. The court decided that the information on the therapeutic properties of the product placed on the website without indicating that the product was not a medicinal product, could contribute to creating the impression that the product is a medicinal product and is able to treat bronchitis, acute respiratory infections, influenza and cholecystitis, which, in turn, may mislead consumers as to the consumer’s properties of the product and, at the same time, is a factor in stimulating sale of the product as a medicinal product, which is not true to fact. In view of this, the court decided to dismiss the claim (Decision of the Kyiv Commercial Court dated 2 October 2017 in the case No 910/13758/17); and
- The Plaintiff – a chain of pharmacies – filed a claim for the invalidation of the defendant’s decision (Kyiv Regional Department) of the AMCU decision on violation of the legislation on Protection from Unfair Competition and imposing a fine. The decision obliged to stop the violation by bringing the exterior design of the defendant’s pharmacy in compliance with the provisions of the current legislation. Such a decision was made in connection with commission of the violation in the form of disseminating misleading information by providing incomplete or false information to the general public by an economic entity with regard to peculiarities of sale of the goods, price and discounts on them, which may affect intentions of these individuals regarding purchase of the goods of this entity. In particular, there were signboards with the inscription “THE LOWEST PRICES”, “-5%” and “-7%.” The previous court instances concluded that there were no legal grounds for declaring the AMCU decision invalid. The Supreme Court of Ukraine ruled that the cassation appeal shall be dismissed (Ruling of the Supreme Court of Ukraine dated 6 November 2018 in the case No 910/18025/17).