Information or advertising? What pharmacies are allowed to do
In 2012, a restrictive ban on advertising by pharmacies was introduced into Polish law. According to Art. 94a of the Pharmaceutical Law, it is only permissible to provide information on the location and working hours of a pharmacy or a pharmacy outlet. Violation of the ban can draw a heavy fine, up to PLN 50,000. In practice, the advertising ban is strictly enforced by the province pharmaceutical inspectors, which results in numerous administrative fines imposed on businesses.
The provision previously in force banned only advertising to the public of activities of pharmacies directly referring to products reimbursed by the national health system or products with the same name as a reimbursed product.
The provisions currently in force have more tightly restricted advertising of (and according to some, also providing information about) entities operating pharmacies. The purpose of the complete ban on advertising pharmacies and pharmacy outlets is to protect the public health, primarily by reducing excessive consumption of medicinal products. While the purpose seems legitimate, this provision has been widely commented on and has generated justified controversy.
If it encourages, it is advertising
As stated in Art. 94a of the Pharmaceutical Law, mere information about the location and working hours of a pharmacy or a pharmacy outlet is not advertising. But in light of the case law from the administrative courts, it should be recognised that the parliament treated the concept of pharmacy advertising relatively broadly. The Supreme Administrative Court has held that advertising is any activity that aims to encourage potential customers to purchase specific goods or to use specific services (e.g. judgment of 20 July 2017, case no. II GSK 2583/15), regardless of the forms and methods of this activity and the means used (e.g. judgment of 28 September 2017, case no. II GSK 3346/15).
Followed by the administrative courts, the State Pharmaceutical Inspectorate is of the opinion that when differentiating between information and advertising one must bear in mind that the basic determinant of an advertising message is not only a more or less explicit encouragement to buy a product, but also the actual intention of the proponent of the message, and the reception of the message by addressees.
Advertising includes promotion and sometimes even just a name
A statement is advertising when the informational layer is outweighed by encouragement to purchase a product, and that is the purpose of the person making the statement and how it is perceived by the average recipient to whom it is addressed. All promotions (especially price promotions) are advertising for the merchandise and the company conducting the promotion. On the other hand, price lists containing information on prices of goods and services, published solely for the purpose of making known the prices of certain products, do not constitute advertising (Art. 4 of the Act on Information on Prices of Goods and Services of 9 May 2014).
In the courts, it has been held that the name of a pharmacy may constitute advertising of the pharmacy, especially if it contains evaluative words or words suggesting an advantage from purchasing, i.e. encouraging purchases at a particular pharmacy (e.g. Supreme Administrative Court judgment of 25 April 2019, case no. II GSK 355/19). Also, information on how long it takes to fill a prescription has been found to violate the ban under Art. 94a of the Pharmaceutical Law (e.g. Supreme Administrative Court judgment of 2 September 2021, case no. II GSK 501/21).
The ban applies to all
The advertising ban is addressed to all entities (natural and legal persons), regardless of the source of their interest in publishing such advertising. The provisions introducing a categorical ban on advertising pharmacies and imposing sanctions for violation of this ban do not require that the pharmacy advertising (or the entity operating it) be the owner of the advertising or promotional materials used in such activity (e.g. Supreme Administrative Court judgment of 25 May 2021, case no. II GSK 1025/18).
“Pharmacy 500 metres away” is advertising
How broadly this ban is interpreted can be seen in the judgment of 31 July 2020 (case no. VI SA/Wa 653/20), in which the Province Administrative Court in Warsaw held that a banner on a large-format advertising medium on a multi-family residential building was an advertisement for a pharmacy. The banner displayed the name and logo of the pharmacy, its location and opening hours, and the direction and approximate distance of the pharmacy from the banner. The banner was visible at a distance to many recipients. The court held that an undertaking placing a large banner on a building and incurring certain financial outlays for this purpose (e.g. the costs of ordering this service and renting the space) in fact aims to advertise its activity and services, as it expects that the costs will be recouped when customers attracted by the banner start using the pharmacy’s services. It does not matter whether the advertising was effective, that is, whether it actually increased sales at the pharmacy.
What about vaccination points, pharmaceutical care, and drug review?
Due to the current wording of Art. 94a of the Pharmaceutical Law (or rather its interpretation by regulators), pharmacists have even come to doubt whether they can inform patients about vaccination against COVID-19 offered at the pharmacy. As a result of the action of the Supreme Pharmaceutical Council, this forced the Chief Pharmaceutical Inspector to clarify that the marking of general pharmacies in accordance with the guidelines for organisation of General Vaccination Outlets does not violate the ban on advertising.
The admissibility of informing patients of pharmaceutical care provided by pharmacists (i.e. activities leading to optimisation of pharmacotherapy and ensuring its proper course) also seems problematic, although such rights stem directly from legal provisions.
Such a strict approach to the advertising ban may harm patients’ interests. Ongoing work to clarify drug reviews, i.e., a comprehensive analysis by pharmacists of all medications used by a patient, may prompt regulatory changes. Such demands have been made for a long time, but the announcements of legislative changes have not yet brought the desired effect. Recently, at the Karpacz Economic Forum, Chief Pharmaceutical Inspector Ewa Krajewska said that a well-written clause on what does not constitute advertising would be useful. She pointed to the need for legislation due to the growth of pharmaceutical services.
Context is important
For now, a change in the line of rulings from the courts is noticeable, if only with respect to content allowed on advertising banners under Art. 94a of the Pharmaceutical Law. In its judgment of 22 October 2021 (case no. II GSK 778/21), the Supreme Administrative Court considered the essence and purpose of the ban on advertising pharmacies. It pointed out that although all advertising is also information, not all information is advertising. Information as such is straightforward in form and content, and lacks the features of influence intended to persuade recipients to make a purchase. From this point of view, the message is neutral as it is supposed to provide (only) data about a good or service. On the other hand, in addition to being a source of information, advertising also contains an element of persuasion, aimed at achieving a specific goal, namely evoking an incentive to purchase goods or services. The presence of an element of persuasion must be inferred from the content of the message, its language and form, the medium used, and the context.
For pharmacies to be able to inform customers without fear about the services they provide, such as pharmaceutical care or, soon, drug reviews, the appropriate exemptions must be reflected in the Pharmaceutical Law. Until then, regulators should primarily take into account the essence and purpose of the advertising ban, assessing the actions of businesses in terms of whether their messages have an additional persuasive layer or are merely informational.
Natalia Falęcka-Tyszka, attorney-at-law, Life Science & Healthcare practice, Wardyński & Partners
