Advertising Self-Regulation Appeal Commission Rules on Misleading and Comparative Advertising of Medicinal Products

In its latest decisions, the Portuguese Self-Regulation Appeal Commission decided on two disputes concerning the validity of medical products advertising campaigns.

The disputes involved the same two commercial companies: GLAXOSMTHKLINE CONSUMER, HEALTH CARE, LDA (henceforth “GSK”) and PROCTER & GAMBLE PORTUGAL, S.A (henceforth “PROCTER & GAMBLE”). PROCTER & GAMBLE considered that GSK’s use of the expressions “good safety profile” and "faster recovery of nasal symptoms in two days" could disrespect the principle of truthfulness and the prohibition of unfair competition.

GSK argued that the expression “good safety profile” did not lead the consumer into thinking that the product is fully effective or that it is free from possible side effects. It argued that the expression is used in a very specific context to inform the user “that the product is an alternative on the market” as compared to others. However, at first instance, the Advertising Ethics Jury of the Self-Regulating entity decided in favor of PROCTER & GAMBLE’s position, arguing the lack of objectivity.

On the other hand, concerning the expression “faster recovery of nasal symptoms in two days", GSK argued that the expression used did not allow any competitor (and their products) to be identified implicitly or explicitly. In fact, GSK added that it is merely a comparison with the therapeutic class of nasal decongestants. Thus, it did not constitute comparative advertising. At the first instance, the Advertising Ethics Jury of the Self-Regulating entity also decided in favur of PROCTER & GAMBLE position.

Ultimately, on appeal, the Appeal Comission decided in favor of GSK in both disputes. Indeed, considering the context and the interpretation of legal provisions, the Commission understood that there is no breach of the principle of truthfulness and also the absence of unfair competition.