In December 2017, the Court of Appeal of Versailles ruled that retail pharmacy websites can sell non-prescription medicinal products on the online platform doctipharma.fr, thus overruling the May 2016 first instance decision of the Court of Nanterre. The Court of Appeal confirmed that Doctipharma does not act as an illicit “intermediary” in the sale of medicinal products but only operates as a mere technical service provider for the referenced pharmacy websites, which sell directly to consumers through the platform. The general terms and conditions of the platform make it sufficiently clear that each of the pharmacies is responsible for the sales that take place on their own websites. The court therefore considered that Doctipharma’s activity was lawful because the relevant rules do not prohibit pharmacies to subcontract the creation and technical maintenance of these websites to third parties.
Interestingly, the judgment of the Court of Appeal recalls a 2013 opinion of the French Competition Authority (FCA) on the then applicable framework to the online sale of non-prescription medicines. For the FCA, the framework, and in particular the order on good dispensing practices for the online sale of medicinal products, contained unjustified restrictions, including subcontracting restrictions. The French Administrative Supreme Court quashed the order in 2015. However, the current order on technical regulations applying to websites selling medicines maintains: (i) the prohibition to subcontract all or part of the internet sales activity to a third party; as well as (ii) the possibility to subcontract the technical support of the websites to third parties other than health product companies (see our previous updates, Online sales of medicines take a step forward in France and French Competition Authority issues unfavourable opinion on draft decrees regulating online sales of medicines).
A prior version of this post was originally published by the same authors in Practical Law – Life Sciences, December 2017 Issue (Thomson Reuters).