Goltsblat BLP advises that a joint meeting of three Russian FAS expert councils on using the word “quickly” in medication advertisements has yielded some precedent-setting decisions that we cover in this update.
The meeting was prompted by the FAS opening 25 cases in 2017 involving medication advertisements using the word “quickly, almost all ending in the FAS prohibiting the word’s use in this type of advertising, as it supposedly guarantees the medication’s benefit. This approach has stirred serious concerns in the pharmaceutical industry in general.
Goltsblat BLP lawyers (Elena Trusova, Evgeny Oreshin and Irina Shurmina) were instructed to represent two of the seven companies whose commercials were brought before the meeting. The other companies agreed to Goltsblat BLP voicing the industry's common stance on use of the word “quickly” in advertising.
You might recall that, under clause 8, part 1, article 24 of Federal Law No. 38 - FZ dated 13 March 2006 “On Advertising”, medication advertisements may not guarantee the benefit or effectiveness of the product advertised.
The meeting of three Expert Councils (ECs) was called by the FAS to elaborate a legal position and take the views of the industry and experts into consideration.
The participating ECs were those for Applying the Advertising Legislation, for Developing Social Sphere and Healthcare Competition and for Applying Antitrust Laws in the context of Unfair Competition.
ECs are FAS advisory bodies and, when drawing its resolutions on specific cases, the FAS takes considerable heed of the approaches elaborated by the experts and the results of the EC meetings.
The experts have resolved the following key issues:
1. The word ‘quickly” may be used in medication advertisements
The ECs were asked whether the following nine commercials using the word “quickly” guaranteed the benefit and effectiveness of the relevant medication:
1. Nurofen for Children: “Nurofen, Tablets for Children. Quick Relief for the Signs of Cold and Flu”;
2. Fastum-gel: “Fastum-gel quickly delivers the active substance to a pain source and reduces inflammation”;
3. Amixin: “Amixin has quick effect”;
4. Imodium: “Immodium is a quick and gentle cure against diarrhoea”;
9. Ibuclin: “2 Ibuclin components intensify one another, working quickly and with long-lasting effect”.
In her speech, Elena Trusova, IP and LDR Partner, Goltsblat BLP, highlighted the following aspects subsequently acknowledged by the ECs:
1. as such, use of the word “quickly” in advertisements does not guarantee the benefit or effectiveness of a medication. This guarantee may be expressed by other words, such as perfective verbs, while the word “quickly” and others like it merely intensify the meaning of the word with which they are combined;
2. guarantee of result might follow from words that, by their semantic meaning, convey that the ultimate result is unavoidable, while not admitting any interim effect (for instance the word “victory”, since a partial “victory” over sickness is not possible);
3. whether or not a commercial guarantees effectiveness is determined by analysing it as a whole, without being limited to its text component, against the background of the general information context, the plot and the combination of the text and the action on the screen”,
The experts seem to have agreed with this stance after their discussion at the meeting, since six commercials were eventually found to contain no guarantee of effectiveness (commercials 1 - 6 listed above). In contrast, the other three (commercials 7 - 9) were said to convey such a guarantee (by other words and elements of the advertisements but not the word “quickly”).
2. Goltsblat BLP is working together with the pharma industry in drafting FAS recommendations on using the word “quickly” and on other aspects of applying the medication advertising legislation
Representatives of the Association of International Pharmaceutical Manufacturers and of OJSC Nizhpharm informed the ECs that an analytical report providing such recommendations was being developed by pharma representatives.
FAS Deputy Head Andrey Kashevarov backed the initiative, reiterating the need to elaborate common standards for using the words “quickly” and “long” in medication advertisements for the pharma and advertising community to follow, without giving the impression of a cure being guaranteed.
The Goltsblat BLP team has drafted an Analytical Overview of FAS Resolutions and Court Judgements on Cases Involving Medication Advertisements and a set of Recommendations, the Recommendations was submitted to the FAS for elaborating clarifications on advertising over-the-counter medicines (for using the word “quickly” and for all other key issues).
The work on the Overview and Recommendations was undertaken on instructions from and in close contact with major professional pharmaceutical associations, i.e., the Association of International Pharmaceutical Manufacturers (AIPM), the Association of European Businesses (AEB), the Association of Russian Pharmaceutical Manufacturers (ARFP), the Union of Professional Pharmaceutical Organisations (SPFO) and more than 100 pharmaceutical companies, and in dialogue with the Russian Association of Communications Agencies (RACA) and the National Advertising Alliance (NAA).
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