Contributed By Pakharenko & Partners (Kyiv)
General requirements for advertising include prohibition on: The dissemination of information about a product that is prohibited (production, circulation or importation into Ukraine), discriminatory statements, provision of information that may cause harm to people’s health or life and/or to the environment and prompt security safeguards to be neglected; having an effect on the subconsciousness of the consumers of advertising; the use of an individual’s image or the use of his or her name without written consent.
Advertising must be clearly separated from other information so that it can be identified as advertising. Hidden and unfair advertising is prohibited.
Under the current Ukrainian legislation (par. 1 Article 21 of the Law of Ukraine on Advertising, par. 4 Article 26 of the Law of Ukraine on Medicines) advertising of the following products shall be allowed:
At the same time, the advertising of the following products shall be prohibited by the law:
General definition of advertising, in accordance with Article 1 of the Law on Advertising is as follows: Information about a person or a product disseminated in any form and in any manner, directed at unspecified range of consumers of advertising and intended to form or maintain awareness of the consumers of the advertisement and their interest with regard to such person or product.
Under the general legislation, advertising is not considered to cover placement of information about the registered name of an entity, marks for goods and services owned by this entity, the type of its activity (if it does not follow from the registered name of the entity), as well as information about the manufacturer of the goods and/or goods in the places, where this product is sold or offered to the consumer, in particular on the elements of equipment and/or design of sales areas, as well as directly on a product itself and/or on its packaging.
Also, information about a product that is provided in compliance with the law (for example, the remote provision of information about the products to the buyer) and information directed at a particular person shall not be considered as advertising.
As regards the distinction between advertising and information on medicines, it should be noted that the concept of advertising of a medicine is provided in the Law on Advertising, and the definition of information about a medicine is provided in the Law on Medicines.
Comparison of advertising and information about a medicine:
Advertising of medicine v information about medicine
Scope of information
Registered v non-registered medicines
Prescription-only medicines v over-the-counter medicines
Scope of persons
Target audience: healthcare professionals v healthcare institutions
Disease awareness campaigns may be recognised as advertising if information about a medicine is disseminated among the general public and in a manner aimed at formation and maintenance of consumer awareness and interest to such persons or products and will encourage purchasing and consuming the advertised goods (medicines). If such information is directed at a target audience (for example, healthcare professionals) in observance of other limitations towards advertising, such information may not fall under the definition of advertising and limitations applied thereto.
Press releases regarding medicines for mainstream media can be treated as advertising and thus need to strictly comply with restrictions provided for the medicines advertising; in particular, adhering to general principles of advertising and special restrictions and requirements in terms of medicines advertising.
In cases when information contained in press releases is intended for placement in specialised industry publications dedicated to medical issues, fewer restrictions will be applied, that is, it is allowed to provide information about medicines in compliance with the requirements thereto set forth in the Law on Medicines.
More detailed information regarding restrictions and distinctions applied depending on the target audience is provided in 2.2 Difference Between Information and Advertising.
Advertising of medicines, medicinal products and methods of preventive care, diagnosis, treatment and rehabilitation shall not include: comparison with other medicines, medicinal products, methods of preventive care, diagnosis, treatment and rehabilitation aimed at enhancing the advertising effect.
It is worth mentioning that relations arising from comparative advertising are regulated by the Ukrainian unfair competition laws. The advertiser shall be responsible for the unlawful comparison used in advertising. Decisions regarding declaring a comparison used in advertising as unlawful are taken by the Anti-monopoly Committee of Ukraine (AMCU).