How to advertise medical services: are there any specific requirements for advertising?
In the digital era, marketing and high-quality advertising of certain services or goods takes on greater and greater importance. This is especially true for advertising of medicines and health products, as they occupy a significant place in our life.
Therefore, we want to discuss medical marketing and all issues related to advertising requirements for medical services.
How is the issue of advertising in medicine reflected in the law?
Today, only two regulatory documents regulate the promotion of medical services, drugs and equipment. This is the Law of Ukraine "On Advertising" and the accompanying Resolution of the Cabinet of Ministers of Ukraine "On the procedure for imposing fines for violation of the legislation on advertising".
The procedure determines that the control of advertising activities of any enterprise is carried out by the Antimonopoly Committee (hereinafter AMKU) and the State Service Of Ukraine On Food Safety And Consumer Protection.
What will you face for violation of advertising legislation?
In case of violations, the Antimonopoly Committee of Ukraine may impose rather serious sanctions. For example, a fine is usually between 5% and 10% of a company's annual income. In addition, it can be increased in case of aggravating circumstances.
As for the disputes with the State Service Of Ukraine On Food Safety And Consumer Protection, its fines are not so serious, however, the disputes themselves require much more time, resources and distort the image of the enterprise.
In order to better understand the logic of regulatory authorities in this area, it is useful to understand the practice of making decisions and appealing them. Let us now consider a few cases.
The first case: distribution of misleading information
The essence of the matter. The Antimonopoly Committee of Ukraine sent a request to the LLC that had set forth in its advertisement that it had the lowest prices and the best choice of medicines. The main purpose of the request of the Antimonopoly Committee of Ukraine was to find out whether the Company had carried out a market research before putting up advertising banners and other media with such information. To which the company replied that that was actually a mistake made by their counterparty, who provided advertising services. However, the Antimonopoly Committee of Ukraine dismissed that information by submitting requests to an advertising agent, who in turn also did not confirm those data.
After that, the Antimonopoly Committee carried out its own research and pointed out the availability at the market of medical products, in the relevant area, in a pharmacy with lower prices. This means that the LLC has posted false information that affects the intentions of buyers and customers, as well as creates unfair competition. This is precisely what influenced the decision ruled out by the court.
The case went through all three courts of instances, but the last one of those still remained in favor of the position of defense of the court of first instance (which was supported by the Antimonopoly Committee of Ukraine) and upheld the respective decision.
Conclusion. We see that even advertising agencies do not always know all the requirements of the law relating directly to their profile activities, and therefore, for greater certainty, it is better to play it safe with the help of a specialized lawyer in this field of expertise. After all, even if you care about the help of an advertising contractor, the responsibility still lies with he who places the relevant advertisement.
The second case: the engagement of the doctor in advertising
The essence of the matter. The following striking example is the case No. 926/1778/15, which was initiated because the company had placed a photograph of a doctor in an advertisement. And this is a violation of the provisions of the Law of Ukraine "On Advertising", namely, article 21, part 7.
This case is interesting not only in terms of court decisions, but also in terms of the procedural law. The fact is that the Antimonopoly Committee of Ukraine did not provide an appropriate decision on sanctions, therefore, the judicial authority, in the process of considering the case, took into account the minutes of the meeting of the State Service Of Ukraine On Food Safety And Consumer Protection and, what is noteworthy, the legal conclusion of the legal department of the Ukrainian Association of Periodical Press Publishers and the Outdoor Advertising Association. Moreover, this has become one of the factors protecting the rights of a business entity and victory in the courts of all three instances.
Conclusion. This case demonstrates that the court can, at the right time, remain on the side of the business. Despite significant non-compliance with the provisions of the Law of Ukraine "On Advertising" on the part of a business entity, an assessment of the complexity of the situation was carried out and an objective decision was made in accordance with the norms of the current legislation. It is important to remember that a significant role in such cases is played by qualified defense lawyers, who can timely draw the court's attention to such practice and decisive arguments.
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The third case: an appeal against a decision on violation
No less interesting is the case concerning the rather well-known center of cosmetology and therapy, where an individual entrepreneur approached the State Service Of Ukraine On Food Safety And Consumer Protection with a question of appealing the decision on violation of the legislation on advertising.
The essence of the matter. The Cosmetology Center placed an advertisement with the text on the treatment of various skin diseases on the facade of its own premises, but did not take into account the provisions of the Law of Ukraine "On Advertising" in Article 21 of Part 4, which obliges you to place a well-known warning sign: "Self-medication can be dangerous to your health."
As a result of the violation, a fine was imposed on the enterprise, and the court remained on the side of the state body, although in fact the situation was rather ambiguous. After all, the enterprise provides cosmetology services, so there were questions about the possibility of providing specific medical services, and, accordingly, the need to place this inscription.
Conclusion. In the practice of regulatory authorities quite often there are situations where it seems that the final result is known in advance. However, if the advertising product and case files were prepared and verified by a competent lawyer, the result could be positive for the business.
Practice shows that even in seemingly unambiguous situations, a court decision may surprise you. To ensure the safety of your business, it is worth contacting specialists in this field in advance who will be able to legally substantiate the use of certain phrases and means in your advertising.
If you need advice or assistance in protecting your interests in matters related to advertising, we are ready to work with you on this.
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