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​The lifting of the ban on comparative advertising of medicines can create a problem in the pharmaceutical market – lawyer

Interfax-Ukraine dated November 15th, 2019.

Andrii Gorbatenko, partner, attorney-at-law at Legal Alliance Company.

The permission provided for by the law on harmonization of Ukrainian legislation with the EU law in the field of comparative advertising (draft law No. 0953) to openly compare a product with the products of a competitor in advertising can create a problem for consumers in the pharmaceutical market of Ukraine, Andrii Gorbatenko, partner at Legal Alliance Company, believes.

He reminded that the adopted draft law provides for the abolition of the ban on comparative advertising of medicines, which is now contained in the law "On Advertising". At the same time, the new law establishes more precise regulation of this type of advertising, introducing a new definition of comparative advertising and allowing its use in Ukraine.

Now advertisers will be able to use comparisons with competitors in their advertising materials, for this purpose they are given the right to use images, links to goods, trademarks or other designations under which the goods are compared, the competitor’s commercial (company) name, whose activity or goods are compared.

Moreover, the bill allows comparing one or more significant, comparable and representative characteristics of a homogeneous (similar) product, activities, including price, information about which can affect the consumer’s decision when making a choice. That is, in practice, simply saying that drug “A” is better than drug “B” will not work. It will be necessary to clearly indicate exactly what it is better, and be prepared to prove this.

“In our opinion, such liberalization of advertising of medicines is a rather controversial step, especially considering the situation with self-treatment in Ukraine. In addition, medicines are complex high-tech products, the assessment of consumer qualities of which requires special knowledge in the medical field. So, it will be difficult for consumers to make objective conclusions about medicines that are advertised based on comparative advertising," said Mr. Gorbatenko.

According to the lawyer, "the simplest comparison is price comparison, but when it comes to medicines, even for such an obvious criterion it is not so simple."

He emphasized that in terms of innovation, medicines can conditionally be divided into two groups: original, which are the result of many years of research and testing, and generic, which are copies of the original medicines. At the same time, generic drugs are always cheaper than the original ones.

Mr. Gorbatenko drew attention to the fact that in countries with strict regulation of the quality of medicines in the process of registration of a generic drug, the "quality of the copy" (the extent of bioequivalence) is established.

“Copies of group A” are high-quality copies that are fully consistent with the original; copies of group “B” are slightly worse; copies of group “C” are even worse; copies of group “D” do not need commenting. The problem is that in Ukraine there is no such a gradation of generics, and therefore often even doctors don’t know how much this or that generic is close to the original, where really, by purchasing a generic, you can save without sacrificing quality and safety, and where such savings can adversely affect the result of treatment," he said.

At the same time, the lawyer noted that the bill will soon be sent for signature to the President of Ukraine and will enter into force on the day following the day of its publication.

"Therefore, there is every reason to expect the above changes this year," he predicts.

As reported, the Verkhovna Rada supported draft law No. 0953 “On Amending Certain Legislative Acts of Ukraine Regarding the Harmonization of Legislation in the Field of Comparative Advertising with the Law of the European Union”, which allows open comparing own products with those of a competitor in promotion materials.

According to the forecasts of the authors of the law, its adoption will make it possible to take the next step towards adapting Ukrainian legislation to the EU standards, stimulate the development of fair competition, strengthen protection of the economic interests of consumers and bona fide entrepreneurs, and, consequently, have a positive impact on the economic development of Ukraine.

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