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Archive for: advertising law

Collective interests of consumers, case XVII Ama 125/08

November 26th, 2009, Tomasz Rychlicki

In the article entitled “Termin konkursu powinien być realny“, the Polish newspaper Rzeczpospolita reports a recent case of a buyer of CHIO CHIPS that are produced by The Lorenz Bahlsen Snack-World. He filed a complaint to the representation of the Office of Competition and Consumers Protection in Wrocław. This dissatisfied consumer argued that being in the shop, he chose CHIO chips and not the other products that were sold in a similar price because he was attracted by a draw where he could win some nice prizes. However, he became disappointed because when he did open the package and read the coupon, it turned out that the draw was already over. The date of the draw was shown on the inside part of a special bar attached to chips’ bag, but it could be difficult to read after the break of the package.

Because of the lack of a clear declaration with regard to the end date of the draw, the Company was fined 22000 PLN for the practice of contravention of collective interests of consumers. According to the Polish Act on Protection of Competition and Consumers – APCC – (in Polish: Ustawa o ochronie konkurencji i konsumentów) published in Journal of Laws (Dziennik Ustaw) No. 50, item 331, with later amendments, it was a violation of the obligation to provide consumers with reliable, true and complete information regarding the product.

The Polish Court of Competition and Consumer Protection upheld the contested decision in its judgment, case file XVII Ama 125/08. Such essential information as the period of promotion/draw or the validity date of the product cannot be hidden inside the bar of the package and thus not visible at first glance. Such information must be readily available. The Court ruled that the date of a draw should be indicated clearly on the product packaging and incomplete information is misleading. The judgment is not final yet, the company may file an appeal.

Trade mark law, case I ACa 16/10

October 8th, 2009, Tomasz Rychlicki

The French company Marin’s International brought a case before the Court for the Community Trade Marks and Community Designs, located in Warsaw (in Polish: Sąd Okręgowy w Warszawie Wydzial XXII Sąd Wspólnotowych Znaków Towarowych i Wzorów Przemysłowych). The issue concerned the use of CTMs Marin’s and Lama by the Polish company Display Flash Poland sp. z o.o., within its website in NOSCRIPT tag. The Court in its judgment of 25 September 2009 case file XXII GWzt 8/09, ruled that the use of someone else’s trademark in website’s metatags infringes trade mark rights of such person, and such behaviour may be also deemed as an unfair competition delict.

I know that I should mention the opinion of the Advocate General Poiares Maduro of 22 September 2009 in joined cases C‑236/08, C‑237/08 and C‑238/08, Google France, Google Inc. v. Louis Vuitton Malletier, Google France v. Viaticum, Luteciel and Google France v. CNRRH, Pierre Alexis Thonet, Bruno Raboin, Tiger, a franchisee of Unicis.

(1) The selection by an economic operator, by means of an agreement on paid internet referencing, of a keyword which will trigger, in the event of a request using that word, the display of a link proposing connection to a site operated by that economic operator for the purposes of offering for sale goods or services, and which reproduces or imitates a trade mark registered by a third party and covering identical or similar goods, without the authorisation of the proprietor of that trade mark, does not constitute in itself an infringement of the exclusive right guaranteed to the latter under Article 5 of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks.

(2) Article 5(1)(a) and (b) of Directive 89/104 and Article 9(1)(a) and (b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that a trade mark proprietor may not prevent the provider of a paid referencing service from making available to advertisers keywords which reproduce or imitate registered trade marks or from arranging under the referencing agreement for advertising links to sites to be created and favourably displayed, on the basis of those keywords.

(3) In the event that the trade marks have a reputation, the trade mark proprietor may not oppose such use under Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94.

(4) The provider of the paid referencing service cannot be regarded as providing an information society service consisting in the storage of information provided by the recipient of the service within the meaning of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (‘Directive on electronic commerce’).

This is way more interesting if one realizes that almost month ago Google has announced that it doesn’t use the “keywords” meta tag in web search ranking.

Display Flash Poland filed an appeal complaint. The Appellate Court in Warsaw in its judgment of 14 July 2010 case file I ACa 16/10 dismissed it.

Advertising of pharmaceuticals, case II CSK 289/07

May 7th, 2009, Tomasz Rychlicki

This case is a little bit old but I think it’s really worth mentioning to P.T. readers. The Supreme Court of the Republic of Poland decided a case regarding misleading advertising of pharmacetical products. The Court in its judgment of 2 October 2007, case act signature II CSK 289/07 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 act signature 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.

Polish case law on advertising of pharmaceuticals

February 1st, 2009, Tomasz Rychlicki

Below you will find a list of judgments and decisions on advertising of pharmaceuticals. You can find a more detailed discussion on each judgment or decision under the link provided with the case file. All judgments and decisions are given in chronological order.

- The judgment of the Voivodeship Administrative Court in Warsaw case file VI SA/ Wa 1136/10.

- The decision of the the Main Pharmaceutical Inspector of 10 March 2010, no. GIF-P-R-450/141-4/ZW/09/10.

- The decision of the the Main Pharmaceutical Inspector of 4 March 2010, no. GIF-P-R-450/147-3/ZW/09/10.

- The decision of the the Main Pharmaceutical Inspector of 6 January 2010, no GIF-P-R-450/126-3/ZW/09/10.

- The judgment of the Voivodeship Administrative Court in Warsaw of 11 March 2010, case file VI SA/Wa 2110/09.

- The judgment of the Supreme Administrative Court of 10 March 2010, case file II GSK 461/09.

- The judgment of the Voivodeship Administrative Court in Warsaw of 18 December 2009, case file VI SA/Wa 1758/09.

- The judgment of the Supreme Administrative Court of 26 June 2008, case file II GSK 199/08.

- The judgment of the Voivodeship Administrative Court in Warsaw of 17 June 2008, case file VII SA/Wa 556/08. This judgment is not yet final. A cassation complaint may be filed to the Supreme Administrative Court.

- The judgment of the Voivodeship Administrative Court in Warsaw of 3 October 2007 case file VII SA/Wa 1157/07.

- The judgment of the Voivodeship Administrative Court in Warsaw of 29 December 2005 case file I SA/Wa 584/05.

- The judgment 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.

Trade mark law, case III SA/Wr 499/08

January 30th, 2009, Tomasz Rychlicki

The Voivodeship Administrative Court in Wrocław in its judgment of 28 January 2009 case file III SA/Wr 499/08 held that the powers of sanitary authorities include the power to control of foodstuffs also in terms of their marking and labeling. According to article 120 of the Polish Act of 30 June 2000 on Industrial Property Law – IPL – (in Polish: ustawa Prawo własności przemysłowej) of 30 June 2000, published in Journal of Laws (Dziennik Ustaw) of 2001 No 49, item 508, consolidated text of 13 June 2003, Journal of Laws (Dziennik Ustaw) No 119, item 1117, with later amendments, the trade mark is protected as a whole regardless of its composition. So questioning the legality of a trade mark that was made by the State Sanitary Inspection, with the assumption that part of the label of foodstuff is a registered trademark, lead to an unacceptable invasion of the powers reserved by law for the Polish Patent Office. Indeed, such action of SSI would, in fact, “prohibit” the use of a trade mark, while the State Sanitary Inspection cannot encroach on the powers reserved by law for other state authorites.

Article 120
1. Any sign capable of being represented graphically may be considered as trademark, provided that such signs are capable of distinguishing the goods of one undertaking from those of other undertakings.

2. The following, in particular, may be considered as trademarks within the meaning of paragraph (1): words, designs, ornaments, combinations of colours, the three-dimensional shape of goods or of their packaging, as well as melodies or other acoustic signals.

3. Any references in this Act to:
(i ) trademarks shall also mean service marks,
(ii) goods shall mean, in particular, industrial or handicraft goods, agriculture products or natural products, such as, in particular, waters, minerals, raw materials, as well as, subject to Article 174(3), services,
(iii) counterfeit trademarks shall mean identical trademarks illegally used or trademarks which in the course of trade can not be distinguished from the trademarks registered for the goods covered by the right of protection,
(iv) earlier trademarks shall mean the trademarks applied for registration or registered basing on the earlier priority.

A situation where an entrepreneur has advertised tea, using only, image of cannabis-like leaves cannot be considered as advertising of narcotic drugs or psychotropic substances. In this case, it was not a promotion of any other substances prohibited by the law because, there was no name of any specific drug or psychotropic substance. Moreover, this issue goes beyond the competence of the State Sanitary Inspection.

The cassation complaint was rejected by the Supreme Administrative Court in its judgment of 31 May 2010 case file II OSK 832/09.

Advertising of alcohol products in Poland

January 25th, 2009, Tomasz Rychlicki

Current regulations on alcohol advertisement are included in the Act of 26 October 1982 on upbringing in sobriety and counteracting alcoholism (Polish: Ustawa o wychowaniu w trzezwosci i przeciwdzialaniu alkoholizmowi). There are very important definitions included in article 2.

(2) promotion of alcoholic beverages – a public tasting of alcoholic beverages, free distribution of accessories associated with alcoholic beverages, organising the sale of alcoholic beverages with prize-awarding and contests based on purchase of alcoholic beverages, as well as any other forms of encouraging publicly to purchase alcoholic beverages, excluding competitions based on the purchase of alcoholic beverages,

(3) advertising of alcoholic beverages – the public dissemination of trade marks of alcoholic beverages or graphic symbols related to them, as well as names and graphic symbols of entrepreneurs producing alcoholic beverages not being different from names and symbols of alcoholic beverages, which serve to popularise trade marks of alcoholic beverages; any information used for trade purposes, exchanged between firms engaged in the production of, wholesale trading and retail trading in alcoholic beverages, shall not be deemed to be advertising,

(4) sponsorship – direct or indirect financing or co-finance of the activities of individuals, legal persons or organizational units without legal personality for the dissemination, establishing or enhance the reputation of the name, manufacturer or distributor, the trade mark or other sign to individualise of the entrepreneur, its business, product or service

(5) information on the sponsorship – presenting information that includes the name of the sponsor or his trade mark in connection with the sponsorship.

According to article 13₁ of the Act, Advertising of alcoholic beverages shall be prohibited in Poland, except for beer.

Advertising of which shall be permitted provided that
(1) is not directed at minors,
(2) does not depict minors,
(3) does not combine the consumption of alcohol with fitness, or driving,
(4) does not include claims that alcohol has medicinal properties, is a stimulant, tranquillizer or a means of resolving personal conflicts,
(5) does not encourage the excessive consumption of alcohol,
(6) does not present abstinence or moderate consumption of alcohol in a negative way,
(7) does not highlight the high alcoholic content as being a positive quality of alcoholic beverage,
(8) does not have associations with (a) sexual attractiveness, (b) relaxation or recreation, (c) study or work, (d) success or professional life.

2. Advertising and promotion of beer, referred to in paragraph 1 can not be pursued:
(1) in television, radio, cinema and theater hours between 6am and 8pm, with the exception of the advertising provided by the organizer of professional sports in the course of this event;
(2) on video cassettes and other media;
(3) in the press for young people and children;
(4) on the covers of newspapers and magazines;
(5) on advertising posts and billboards and other fixed and movable surfaces used for advertising, except that 20% of the advertising surface will placed with visible and legible inscription indicating about the harmful use of alcohol or to ban of the sale of alcohol to minors;
(6) with the participation of minors.

The Polish Ministry of Health wants to limit the advertising of beer. According to the proposal, the advertising and promotion of beer can not be pursued in TV, radio, cinema and theatres between 6am and 11pm. There is also important news related to the Euro 2012 championships: fans at stadiums will not be allowed to buy drinks with an alcohol content of over 4.5%.

Categories: advertising law | alcohol advertising | Polish law.

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.

Advertising law, alcohol products

January 13th, 2009, Tomasz Rychlicki

In the article entitled “Mniej reklam piwa w telewizji, kinie i teatrze“, the Polish newspaper Rzeczpospolita reports a recent legislative intiative regarding the advertising of alcohol products. Currently regulations on alcohol advertisement are included in the Act on Upbringing in Sobriety and Counteracting Alcoholism – USCA – (Polish: Ustawa o wychowaniu w trzeźwości i przeciwdziałaniu alkoholizmowi) of 26 October 1982, published in Journal of Laws (Dziennik Ustaw) No 35, item 230, cosolidated text published in Journal of Laws (Dziennik Ustaw) of 28 March 2007, No 70, item 472, with later amendments. There are very important definitions included in article 2 of the USCA.

(2) promotion of alcoholic beverages – a public tasting of alcoholic beverages, free distribution of accessories associated with alcoholic beverages, organising the sale of alcoholic beverages with prize-awarding and contests based on purchase of alcoholic beverages, as well as any other forms of encouraging publicly to purchase alcoholic beverages, excluding competitions based on the purchase of alcoholic beverages,

(3) advertising of alcoholic beverages – the public dissemination of trade marks of alcoholic beverages or graphic symbols related to them, as well as names and graphic symbols of entrepreneurs producing alcoholic beverages not being different from names and symbols of alcoholic beverages, which serve to popularise trade marks of alcoholic beverages; any information used for trade purposes, exchanged between firms engaged in the production of, wholesale trading and retail trading in alcoholic beverages, shall not be deemed to be advertising,

(4) sponsorship – direct or indirect financing or co-finance of the activities of individuals, legal persons or organizational units without legal personality for the dissemination, establishing or enhance the reputation of the name, manufacturer or distributor, the trade mark or other sign to individualise of the entrepreneur, its business, product or service

(5) information on the sponsorship – presenting information that includes the name of the sponsor or his trade mark in connection with the sponsorship,

According to article 13¹ of the USCA, Advertising of alcoholic beverages shall be prohibited in Poland, except for beer, advertising of which shall be permitted provided that:

(1) is not directed at minors,
(2) does not depict minors,
(3) does not combine the consumption of alcohol with fitness, or driving,
(4) does not include claims that alcohol has medicinal properties, is a stimulant, tranquillizer or a means of resolving personal conflicts,
(5) does not encourage the excessive consumption of alcohol,
(6) does not present abstinence or moderate consumption of alcohol in a negative way,
(7) does not highlight the high alcoholic content as being a positive quality of alcoholic beverage,
(8) does not have associations with (a) sexual attractiveness, (b) relaxation or recreation, (c) study or work, (d) success or professional life.

2. Advertising and promotion of beer, referred to in paragraph 1 can not be pursued:
(1) in television, radio, cinema and theater hours between 6am and 8pm, with the exception of the advertising provided by the organizer of professional sports in the course of this event;
(2) on video cassettes and other media;
(3) in the press for young people and children;
(4) on the covers of newspapers and magazines;
(5) on advertising posts and billboards and other fixed and movable surfaces used for advertising, except that 20% of the advertising surface will placed with visible and legible inscription indicating about the harmful use of alcohol or to ban of the sale of alcohol to minors;
(6) with the participation of minors.

Categories: Act on Upbringing in Sobriety and Counteracting Alcoholism | advertising law | alcohol advertising | Polish law.

Advertising law, case VII SA/Wa 1449/08

November 17th, 2008, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgments of 11 November 2008 case file VII SA/Wa 1449/08 and 1450/08 decided cases regarding legal rules for building billboards. This issue does not concern trade marks directly, but may be helpful for to understand nuances of Polish law.

Jet Line is a company which specializes in installing large advertising billboards. The company has reported to the governor of Zachodniopomorskie province that it intends to erect two billboards at the port of Szczecin. The Governor has made an opposition which was also upheld by the The General Inspector of Building Control (GIBC). In GIBC’s opinion, billboards are constructions which, because of its size and being permanently linked to the ground, require a building permit as it is required by the Polish law in the Article 28 of Building Law Act of 7 June 1994 – BLA. The company appealed this decision claiming that it is inconsistent with article 29(2)(6) of the BLA.

The building permit is not required for installation of advertising boards and equipment, except those located on structures listed as national monuments under the provisions on the protection of monuments and the care of monuments, and with the exception of light and illuminated advertisings located outside built-up areas within the meaning of the rules on road traffic

The court held that the legislature did not exclude free-standing advertising constructions permanently associated with the ground from provisions included in Article 29 of the BLA. Therefore the court exempted from the obligation to get a building permit all kind of the equipment designed for the construction of advertising, regardless of whether they are free standing, or mounted on existing buildings.

Categories: advertising law | Voivodeship Administrative Court.

Advertising law, new rules for pharmaceutical products

September 7th, 2008, Tomasz Rychlicki

In the article entitled “Przybędzie zakazów w reklamach leków“, the Polish newspaper Rzeczpospolita reports a recent legislative initiative regarding a draft regulation on advertising of medicinal products prepared by the Polish Ministry of Health. Monitors displaying ads may disappear from pharmacies. Advertising of any medicines will not be allowed in hospitals or pharmacies. The proposed draft especially concerns audio and audiovisual advertising. A similar ban exists in the current Regulation of the Minister of Health of 16 December 2002 on the advertising of medicinal products, Journal of Laws (Dziennik Ustaw) of 2002 No. 230, item 1936, however, it allows for advertising contained in radio and television programmes. There were assembled special monitors to broadcast TV spots in some pharmacies. Such exceptions will no longer be allowed , and the display of medicine advertising spots will become illegal.

The proposal also includes the types of advertising of medicinal products: i.e. advertising which is targeted to the general public or persons who are entitled to issue medical prescriptions or persons engaged in the marketing of medicinal products. The Ministry of Health has stresses that such specification will clearly defined market rules and will have a positive effects on fair competition.

Advertising in visual form must contain a warning.

Before use, read the label, which includes indications, contra-indications, data on side effects, dosage and information about the medicinal use of the product, or consult your doctor or pharmacist.

The warning has to be included in any part of advertising, on a flat surface which is not less than 10 percent of total surface area of the ad. The text must be distinguished from the background and it be legible. A warning in an audiovisual advertising has to be placed in the lower parts of the plane, which is not less than 20 percent of the total surface area. It must also be clearly legible in the Polish language and appear on the screen for not less than 5 seconds.

Advertising of pharmaceuticals, case II GSK 199/08

June 30th, 2008, Tomasz Rychlicki

Apteka przy Ratuszu – Centrum Farmaceutyczne (the pharmacy) in Białystok had published a brochure titled “Megaextracharges” (Megadopłaty) in which it has provided information about promotional prices of medicinal products that were available in “Apteka przy Ratuszu”. The Main Pharmaceutical Inspector (MPI) – the central organ of the Polish administration which has the authorithy to supervise compliance with the regulations of Pharmaceutical Law in the scope of advertisements – has ruled that such advertising is prohibited by the Polish Pharmaceutical Law and has ordered the owners of the pharmacy to cease distribiution of brochures and leaflets.

Article 52 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 later amendments provides definition of advertising.

Advertising a medicinal product shall mean any activity consisting in informing about and encouraging to use the medicinal product

Article 53(1-2) of the PHL allows for limited advertising.

1. Advertising of a medicinal product must not be misleading, it shall show the medicinal product objectively and it shall inform about its rational application.

2. Advertising of a medicinal product can not consist of offering or promising of any benefits, in direct or indirect way, in exchange for product’s purchase or delivery of proofs that the product was purchased.

The owners filled a complaint before the Voivodeship Administrative Court (VAC) in Warsaw. The Court overruled the MPI’s decision and held that the disputed brochures provided information only about the possibility to buy cheap medicines which, in consequence, did not fulfil the definition of “advertising of a medicinal product” as provided in Article 52 of the PPL. The VAC did not find any circumstances of “encouragement to buy” in those promotional materials.

The MPI filled a cassation complaint before the Supreme Administrative Court. The SAC agreed with the Main Pharmaceutical Inspector and held that the lower court should assess not only the visual incentive to buy, but also the “actual intention”, while testing the differences between information and advertising.

The Supreme Administrative Court in a judgment of of 26 June 2008, case file II GSK 199/08 clearly noted that prices promotions encouraging to medicinal products purchases in a specific pharmacy are the advertising of a medicinal product and a company which applies it.

Advertising of pharmaceuticals, case VII SA/Wa 556/08

June 19th, 2008, Tomasz Rychlicki

US Pharmacia has commissioned a TV spot for Stoperan – a diarrhoea drug. The ad’s message promised an immediate effect and cure. The Main Pharmaceutical Inspector – the central organ of the Polish administration which has an authorithy to supervise compliance with the regulations of Pharmaceutical Law in the scope of advertisement, has ruled that this advertising spot was contrary to the charactersitics of the drug, because Stoperan works in 1-3 hours and achieves a therapeutic effect after 48-72 hours. In short, it does not cure, though it overcomes the cause.

US Pharmacia has appealed against the MPI’s decision, claiming that it has ceased the broadcasting and screening of the contested ads. The new version had the questioned parts removed and replaced by other to which the MPI did not submit any objections.

However, the Voivodeship Administrative Court has ruled that the MPI had the right to order the cessation of a medicinal product’s advertisement where it was contrary to the current legal regulations and US Pharmacia has violated the provisions of article 55 and 56 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 2004 No. 53, item 533, with later amendments.

Article 55
Advertisements of medicinal products should not be misleading, should objectively present a medicinal product and inform of its rational application.
(…)
Advertisements of a medicinal product addressed to the general public also cannot include any contents that would:
(…) assure that taking a given medicine guarantees an appropriate effect, it is not accompanied by any undesirable effects or that effect is better or the same as in the case of another method of treatment or treatment with the use of another medicinal product;
(…)
Article 56
It shall be prohibited to advertise medicinal products:
1) not authorized to turnover on the territory of the Republic of Poland;
2) containing information inconsistent with the approved Characteristics of the Medicinal Product.

The judgment of the Voivodeship Administrative Court in Warsaw of 17 June 2008, case file VII SA/Wa 556/08 is not final. The parties have a right to file a cassation complaint to the Supreme Administrative Court.

Polish regulations on unfair commercial practices

December 30th, 2007, Tomasz Rychlicki

The Act of 23 August 2007 on Combating Unfair Commercial Practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym) published in Journal of Laws (Dziennik Ustaw) No. 171, item 1206, came into force on 21 December 2007. It implemented the Directive 2005/29 of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450, Directives 97/7, 98/27 and 2002/65 of the European Parliament and of the Council and Regulation 2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”).

Among others things, it defines in article 5(1) misleading commercial practices as actions connected with introduction of products into the market which may lead to mistake as regards to products, its packaging, trade marks, trade names or other signs capable of identifying entrepreneurs, particularly comparative advertising.

The Act also deals with crypto-advertising which is defined as using commentary content in mass-media sources to promote a product where the business/entrepreneur paid for such action but it is not clearly indicated in the content, images or sounds and it is not easily identified by the consumer.

The Act also covers aggressive commercial practices. It defines such actions as (i) onerous processes which are not connected with consumers’ actions or (ii) desisting from acting, i.e. inducing the purchase of products via phone, fax, electronic mail or other means used to communicate in distance.

Advertising of pharmaceuticals, case VII SA/Wa 1157/07

December 7th, 2007, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 3 October 2007 case file VII SA/Wa 1157/07 held that a given activity is deemed as the advertising of pharmaceutical product, if it involves the transfer of information on the product while encouraging its use – i.e., it must be information describing the medicinal product in a way to encourage its use, information that is passed to increase the number of prescriptions, the supply of pharmaceutical product or its sale or consumption.

Advertising of pharmaceuticals, case I SA/Wa 584/05

February 7th, 2006, Tomasz Rychlicki

The Voivodeship Administrative Court in Warsaw in its judgment of 29 December 2005 case file I SA/Wa 584/05 held that the important element of pharmaceutical product advertising is the intention of the advertiser to cause a specific reaction of potential customers. Therefore any activity, regardless of its specific, individual way and method of its performance and measures used for its implementation should be considered as the advertising of a medicinal product if the goal of this activity is to increase sales of the advertised product.

Categories: Art. 55 PHL | Main Pharmaceutical Inspector | pharmaceutical products advertising | Voivodeship Administrative Court.