As we have previously reported, in the beginning of 2012 the Act on Refunding introduced a ban on any form of advertising of pharmacies. As a result pharmacies are now prohibited from any kind of promotion that is intended to increase sales of medicinal products. According to the new regulations informing customers of location and/or opening hours, however, will not be perceived as advertising.
Interestingly, the ban was instigated by the Polish Pharmaceutical Chamber – pharmacists themselves. There is a strong lobby against chain pharmacies, which are perceived as a huge threat to small businesses. To stop any competition in this market the lobbyists claimed that pharmacies are not regular shops but health care institutions. Thus pharmacies should be prohibited from advertising and focus on their mission.
Despite strong opposition from the chain pharmacies and organisations of entrepreneurs, the Pharmaceutical Inspection is conducting a number of administrative proceedings against pharmacies for unlawful advertising.
Generally the Pharmaceutical Inspection does not make its decisions publicly available. However some have been issued by the Inspection in Warsaw, which shed some light on how it interprets the ban. Unfortunately it takes a highly restrictive approach and it is highly unlikely that any exceptions would be tolerated.
For example, in a decision from March 2012, the Inspection imposed a fine on a pharmacy that installed a screen on the front façade of its shop that displayed information such as: ’cheap prescription medicines’, ‘cheap medicines everyday’, ‘promotions’, ‘discounts for regular customers’. In spite of the fact that the information was only displayed for couple of days when the pharmacy was closed (due to the inventory checking) the Inspection still imposed a fine.
In June 2012, another fine was imposed on a pharmacy, which printed and distributed a leaflet containing price lists (and relating validity period) and information about the location and opening hours of the pharmacy. The Inspection claimed that distributing price lists for some of the medicines available in the pharmacy along with the validity period of the lists implied that there was a promotion on those medicines. It indicated, actions intended to increase sales are regarded as advertisement. Moreover, the Inspection stated that even distributing business cards (with the name and logo of the pharmacy) was considered advertisement.
In another decision from June 2012 the Inspection fined a pharmacy for placing an ad in a magazine. The pharmacy admitted that the ad constituted a breach of the new regulations (it included information about discounts and competitive prices), but the pharmacy claimed that it was published by mistake. The ad was ordered in 2011 but the editor published the ad at the beginning of next year (2012), as the magazine was issued every three months. In the last edition of the magazine in 2011 there was no space for the ad, therefore the editor decided to publish it in the first edition of 2012. Thus the pharmacy was not responsible for the unlawful advertising. Still the Inspection held the pharmacy liable and imposed a fine.
In the last publicly available decision the Inspection ruled that distributing a leaflet informing about the scope of services provided by a pharmacy and the change in the opening hours also constituted a breach of the regulation.
Decisions of the Inspection can be appealed to the Main Pharmaceutical Inspector, who so far has not released any ruling in that scope. It is likely those cases will be brought before the administrative courts in near future. It is expected that courts will mitigate the restrictive interpretation of the Inspection and that pharmacies will be allowed to inform (not advertise) about their services and products.
Other cases on the EU and National Life Sciences developments newsletter for October 2012