Can information about medicines that is communicated by third parties – such as journalists – constitute advertising? How about when the journalist has no connection to the manufacturer or marketer of the product? If this sounds like non-starter, think again.
In a recent ruling, the European Court of Justice (ECOJ) determined that a Danish journalist – who published information on his Web site about a product that was promoted for treating gout, kidney disorders and diarrhea, among other things – violated a European Union directive. The offense? In 2003, Frede Damgaard posted info about Hyben Total – four years after Danish regulatory authorities refused marketing authorization for the product.
He was subsequently prosecuted and appealed. Now, though, the ECOJ decided that the EU directive defining the concept of advertising meds “does not rule out the possibility that a message originating from an independent third party may constitute advertising, nor does (it) require a message to be disseminated in the context of commercial or industrial activity in order for it to be held to be advertising.” The court went on to say that such “advertising … is liable to harm public health,” even when it is carried out by “an independent third party outside any commercial or industrial activity.”
Never mind that the court’s own Advocate General, Damaso Ruiz-Jarabo Colomer, wrote an opinion backing Damgaard, who was found to have posted the info on his own initiative and didn’t have any ties to the manufacturing or marketing of the product. The AG believes final say rests with individual EU states: “It is for the national authorities and courts … to ensure the correct balance between, on the one hand, the objectives of protecting health and promoting the rational use of medicinal products and, on the other, the right of the party concerned to freedom of expression, taking into account the special protection afforded to the party concerned, if it is established that he is a journalist.”
In the end, the ECOJ agreed with that much by writing that it’s up to Danish national courts to “determine whether that dissemination (on Damgaard’s Web site) constitutes a form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products.”
Damgaard’s attorney Susie S. Ekstrand, according to the CosmeticsDesign-Europe.com Web site, said “It is a restriction of freedom of speech and journalists need to be careful now, especially those writing online across many member states.”