On 2 April 2009, the European Court of Justice (ECJ) rendered its judgment in the Damgaard case. The ECJ ruled that communication on medicinal products may constitute advertising, even if the person who disseminates the communication is independent from the company which markets the medicinal product.
The Damgaard case makes it clear that anyone who promotes the prescription, supply, sale or consumption of a medicinal product, is bound by the rules on advertising of medicinal products. This means that for example healthcare insurers, who play an increasingly important role in the Netherlands in influencing the prescription and supply of medicinal products, must also comply with the pharmaceutical advertising rules. Recently, the Dutch Minister of Health confirmed that healthcare insurance companies should also comply with the rules on pharmaceutical advertising (see below).
Mr. Damgaard is a journalist against whom criminal proceedings were initiated in Denmark because of an alleged violation of the ban on advertising for an unauthorised medicinal product in Denmark. Mr. Damgaard argued that he was an independent journalist who did not have any financial interest in the company that produces the product and that his communication on the product did not constitute "advertising".
In its response to a preliminary question posed by the Danish court, the ECJ considered that the definition of "advertising" in Directive 2001/83/EC emphasises the purpose of the message, i.e. the promotion of the prescription, supply, sale or consumption of medicinal products. Such information however does not need to be disseminated in the context of commercial activity in order to be considered advertising. The ECJ ruled that the 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 Article 86 of Directive 2001/83/EC, even though the third party is acting on his own initiative and is completely independent from the manufacturer or the seller of the medicinal product.