In its decision dated 4 April 2018, the French Administrative Supreme Court annulled the November 2016 Order regarding technical rules applicable to websites selling medicines (see our previous post: Online sales of medicines take a step forward in France) insofar as the order prohibits advertising of over-the-counter (OTC) medicines on pharmacy websites. The court ruled that, given that the advertising of OTC medicines, including by pharmacies, is generally permitted under certain conditions, the order imposes stricter rules on pharmacies selling these medicines online. However, the court upheld the other rules of the order that were challenged by the applicant, in particular the prohibition to reference pharmacy websites in search engines or price comparison sites against a fee, as well as the obligations to include information on the pricing regime (fixed or free) and to only use certified health data hosting providers.
The Administrative Supreme Court specifically annulled the penultimate paragraph of point 2 of the Annex of the order, which prohibits any kind of advertising on pharmacy websites. The court stated that the French Public Health Code in principle allows the advertising of certain (non-reimbursed) non-prescription medicines under specific conditions (for example, the marketing authorisation does not restrict advertising, the French National Agency for Medicines and Health Products Safety (ANSM) has authorised the advertising, the pharmacist provides objective information, promotes good usage and does not encourage excessive consumption). In addition, brick-and-mortar pharmacies are entitled to make certain OTC medicines directly accessible to patients. Consequently, the court ruled that the order’s online advertising ban for such medicines unduly discriminates in favour of brick-and-mortar pharmacies and is thus illegal.
Finally, the Administrative Supreme Court also upheld a rule included in a second November 2016 Order on good dispensing practices for online sales of medicines, which requires that the pharmacist encrypts its electronic exchanges with the patient (via email or web-based chats) to ensure confidentiality and data protection.
A prior version of this post was originally published by the same authors in Practical Law – Life Sciences, April 2018 issue (Thomson Reuters).