Advertising of pharmaceuticals, case II CSK 289/07

January 24th, 2009, Tomasz Rychlicki

According to one of the older judgments of the of the Supreme Court – Civil Chamber of 2 October 2007, case file II CSK 289/07, published in the Jurisprudence of the Supreme Court, the Civil Chamber (in Polish: Orzecznictwo Sądu Najwyższego Izba Cywilna) of 2008, No 12, item 140, p. 54, a public advertisement of promotional prices (price cuts) of drugs that is made by comparing these reduced prices with the higher prices, suggesting periodic drug sales at a lower price, is a prohibited public advertising of medicines as referred to in article 57(1)(i) and (iii) of the Polish Act on Pharmaceutical Law – PHL – (in Polish: ustawa prawo farmaceutyczne) of 6 September 2001, published in Journal of Laws (Dziennik Ustaw) of 2008, No 45, item 271, with subsequent amendments.

1. Advertising of the following medicinal products, addressed to the general public, shall be prohibited:
i) dispensed exclusively on doctor’s prescription
(…)
iii) included, according to separate regulations, on the lists of the reimbursable medicines and authorized for issuing without prescription, with the proper name identical with the name mentioned on these lists.

It is also the act of unfair competition as provided in article 16(1)(i) of the Act of 16 April 1993 on Combating Unfair Competition – CUC – (in Polish: ustawa o zwalczaniu nieuczciwej konkurencji), Journal of Laws (Dziennik Ustaw) No 47, item 211, with subsequent amendments.

In the field of advertising the act of unfair competition shall be, in particular, the following:
1) advertising contrary to provisions of the law, good practices or offending human dignity,

The Court ruled that assessment whether advertising can be deemed as misleading should refer to the model of the average recipient of this kind of advertising – the consumer of advertised products or services.

In this case, it was the average consumer of pharmaceuticals, to which advertising newspapers and leaflets were directed. As the Supreme Court noted in its judgment of 3 December 2003, case file I CK 358/02, the model of the average consumer, who is reasonably well informed and reasonably observant and circumspect, is now used widely adopted in the Republic of Poland as it is in the European Union.

However, the model of an average consumer could not be defined and considered in isolation from the conditions of this specific case and the realities concerning recipients of specific products to which the advertising is directed. Therefore, one could not ignore the fact that such consumers are often very ill persons, often with reduced capacity of perception and limited ability of reasonable and critical evaluation, as well as they are often elderly, which is also a significant group of consumers of medicines. These are typically the person more susceptible to suggestion and less critical. These people are targeted by pharmaceutical advertising and, while assessing the possibility of confusion, the characteristics of this kind of audience should be taken into account as a model of the average consumer.

See also “Polish regulations on pharmaceutical trade marks” and “Polish case law on advertising of pharmaceuticals“.