In the EU, drug companies are not allowed to publicly promote prescription-only medicines. As courts also apply a broad interpretation of the term “promotional”, nearly all public statements that mention a prescription drug are likely to be qualified as illegal advertising. In certain circumstances, this may be the case even if no drug is mentioned.
But what should a drug company do if false statements about its product are distributed? What is allowed in case of a so-called shitstorm? What can the company do to counter negative public statements about its drugs by HTA bodies or other institutions of the healthcare system?
In a judgment from 12 January 2018, the Higher Regional Court of Cologne (Oberlandesgericht Köln) has now decided that, when facing a – the following term is a quote from the decision – “shitstorm” in the internet, a pharma company may defend its Rx-drug with public statements even if these statements qualify as promotional. In this case, the manufacturer of a veterinary medicine became victim of defamations in the internet. Several posts with allegations about a flea and tick repellent were published on Facebook. As the allegations lacked a factual basis, the manufacturer reacted with own posts about the product to counter this “shitstorm”. Additionally, a webpage was linked where the company responded to the inaccurate allegations and informed consumers and veterinarians.