Directive 2011/62/EU of 8 June 2011 requires Member States to allow distance selling of medicine to the general public on the internet. This Directive was transposed into French law by Ordinance 2012-1427 of 19 December 2012 (the "Ordinance"), thereby opening the way to online sales of medicine in France, but limited to those medicines which do not require a prescription.
Since then, however, the creation of online pharmacies by pharmacists in France has been particularly slow: as of 1 January 2015, as few as 301 websites had seen the light out of 22,401 operating French pharmacies, i.e. a rate of 1.34%, which is ten times lower than Germany.
The French Competition Authority ("FCA") has been critical of certain restrictions contained in the Ordinance, which it deemed unjustified, such as the obligation for those pharmacies wishing to sell products online to prepare and store orders in their premises or in their "immediate vicinity".
Accordingly, the French government has issued two draft orders designed to introduce new provisions.
The FCA, which was consulted by the government, nevertheless on 26 April 2016 issued a negative opinion, mainly because the new provisions:
- lay out the obligation for online pharmacists to request a large volume of information from patients (such as medical analyses);
- encourage online pharmacists to draft analytical written reports for the sale of certain products; and
- impose new formalities to be carried out, such as the implementation of costly periodic quality assessment reports.
The FCA considered these measures to be excessive considering that medicines sold online do not require a prescription and there are no equivalent measures inplace for "bricks and mortar" pharmacies.
Therefore, the FCA has clearly reiterated its support of online sales of medicine, which offer greater flexibility to consumers (such as extended working hours, lower travel costs, a better opportunity to compare prices). The FCA's negative opinion also comes as a reminder that, whilst it is important to counter the potential risks of online sales, any major restrictions to competition must be proportionate and commensurate with the imperative of public health protection.