Five years after the European Court of Justice (the “ECJ”) rendered its judgment in the Damgaard case (Case C-421/07, judgment of 2 April 2009), information on medicinal products still raises major questions about the role of self-prescription, the internet and dedicated blogs.
A Danish citizen, Mr Damgaard, stated on his website that a specific product contained rosehip powder, which is supposed to relieve the pain caused by various types of gout or arthrosis, and that the medicinal product was on sale in Sweden and Norway. However, Mr Damgaard – who was a journalist in the health sector – was neither distributor, retailer nor seller of that medicinal product.
To that extent, Mr Damgaard contended that the information published on his website did not constitute advertising as contemplated in the medicinal products regulation.
In its judgment of 2 April 2009, the ECJ stated that dissemination by a third party of information about a medicinal product, including its therapeutic or prophylactic properties, may be regarded as advertising within the meaning of the Community code relating to medicinal products for human use, even though the third party in question is acting on his own initiative and completely independently, de jure and de facto, of the manufacturer and the seller of such medicinal product.
In that respect, the ECJ referred to the basic aim of regulation governing the production, distribution and use of medicinal products, which is to safeguard public health. The ECJ, moreover, stated that information supplied to users should provide a high degree of consumer protection, in order that medicinal products may be used correctly on the basis of full and comprehensible information.
Since advertising of medicinal products has the potential to harm public health, the fact that the information is disseminated by an independent third party outside any commercial or industrial activity does not exclude the Community code relating to medicinal products for human use from applying.
Whenever communicating about medicinal products, one should bear in mind that this could be considered advertising for those products, which requires clear and understandable information.
