Legal & Regulatory > Portugal > Pharma Advertising on Social Media

Joana Silveira Botelho of Cuatrecasas argues for the need for an EU-wide regulatory update on the advertising of pharmaceutical products online, given current rules do not take into account the spread and influence of social media today.

Today’s internet is so much more than a company’s website

It is undeniable that the internet has changed the world. It is also undeniable how little laws have changed to accommodate the internet and the new reality that emerged from its foundation. It is safe to say that the rules governing the advertising of medicinal products have not been updated to compensate for the effects that the internet has had in Portugal, but across Europe as well.

The advertising activities of medicinal products on the internet must comply with the rules governing the ”traditional” advertising of medicinal products. It seemed relatively easy with company websites: restricted access to healthcare professionals for information on medicinal products subject to medical prescription. However, it was only after a judicial decision that pharma companies were allowed to publish the summary of a product’s characteristics and information on the products marketed by that company on their institutional websites; even for products subject to medical prescription.

However, today’s internet is so much more than a company’s website. There are e-mails, YouTube, Facebook, Instagram, Twitter, LinkedIn and people are communicating and more through these channels. Many companies use these social networks and online platforms to promote their products and services. Most of the messages published on social networks are addressed to the general public and therefore the general rule on advertising to the general public should apply: no advertising of medicinal products subject to medical prescription to the public and the advertising shall be set in such a way that it is clear that the message is advertising.

Considering the application of these rules, a payment to an Instagrammer for them to use a non-prescription medicinal product in a post should be duly disclosed by the Instagrammer. Although from a legal perspective the application of this rule is quite simple, it will prevent the effects of this type of promotion.

What if the influencer or blogger was not compensated by the pharmaceutical company to publish the use of such products? Would it still be advertising?

What if the influencer or blogger was not compensated by the pharmaceutical company to publish the use of such products? Would it still be advertising? According to a restrictive interpretation of advertising of medicinal products we would conclude that it was, provided it had the effect of inducing and promotion the supply of a medicinal product.

Other issues may arise from groups created on LinkedIn with the purpose of providing information to a group of patients or healthcare professionals. On one hand, it may be difficult to distinguish the type of message disclosed: informative or promotional? On the other hand, it may also be difficult to limit the group to healthcare professionals only, in case there is a risk of the message being seen as promotional.

Another very important issue is the comments from the participants of the group: what if they contain an illegal promotional message? And what if they report an adverse event? We believe that the answer to these questions would be quite difficult to find under the current rules governing medicinal products. One could argue that the answer may be in the interpretation of advertising and in the fact that the messages cause an effect or have the object to induce the prescription or supply of medicinal products.

The truth is that, if countries do not legislate on these matters, the courts and, in the first moment, the regulatory authorities, will analyze and judge these situations on a case-by-case basis, which will inevitably lead to different solutions for the same situation and create an uncertain scenario for companies.

We believe that the answer to these questions, and many others that arise from the use of the social media by pharmaceutical companies, should be addressed by legal rules issued by the European Union which are applicable to all member states, in order to avoid different rules in cross-border situations which are inherent to the internet. Until that point, which may still take some time, self-regulatory associations in the sector should issue guidance on social media messages and policies. The ABPI Code in the UK is a very good example. Even if one does not agree with the rules and criteria used, it foresees the majority and most relevant situations that may arise from social media and its impact when promoting and disclosing information from pharmaceutical companies.