Prohibition on advertising medicinal products disregarded

In a newspaper article published in print as well as online, a journalist reported about her own personal experience with a prescription drug. Based on an interview with a specialist physician, she covered aspects such as the incidence of the disease in the population, sick leaves from work, treatment options, and the state of research. Following a complaint from a third party, Swissmedic, the Swiss Agency for Therapeutic Products, initiated proceedings and decided to prohibit the article in question. Moreover, the Agency ordered the media company to remove the online version of the article from its website. The media company lodged an appeal against the decision with the Federal Administrative Court (FAC).

Violation of the prohibition on advertising to the public
In its Judgment, the FAC establishes that advertising directed at the general public for prescription medicinal products is unlawful pursuant to the Therapeutic Products Act. Media reports about prescription drugs directed at the general public are only lawful if they contain general information about health or diseases which are not directly or indirectly related to specific drugs.

The article in question gives the name of a prescription drug, indicates its active ingredient and the name of the holder of the marketing authorisation. According to the FAC, the article clearly reflects the journalist’s personal preference for the innovative new drug. The positive presentation is liable to influence consumer behaviour, conceals possibly severe side effects, implies its superiority over other treatments or medicinal products, and places the drug in an especially favorable light. The Court holds that the report on the personal experience with the prescription drug is one-sided and, therefore, incomplete, as well as neither factual nor well-balanced. In summary, the article leaves the average reader with the general impression that it is promotional; therefore, it no longer qualifies as information of a general nature. As a result, it is in violation of the absolute prohibition of advertising to the public for medicinal products which may only be supplied on a prescription. The appeal of the media company is rejected.

This judgment may be appealed to the Federal Supreme Court.