Claims in Medicinal Product Advertising Deemed Misleading Likely to Constitute an Unfair Commercial Practice

On the 8th of January of 2021, the Advertising Ethics Jury of the Self-Regulating entity was presented with a dispute to decide on the lawfulness of the advertising campaigns, aimed respectively at the general public and health professionals, disseminated in various media, for the purpose of announcing the product BRUFENON, a non-prescription medicinal product, whose AIM is owned by the Mylan Group.

The present dispute was between Bene Farmacêutica Lda. (henceforth “Bene”) and BGP Products, Unipessoal, Lda. (henceforth “BGP”), a company of the Mylan Group.

Bene challenged BGP´s BRUFENON advertising campaigns, claiming it amounted to misleading advertising and unfair commercial practice.

For that purpose, Bene argued that BGP’s advertising campaign, by using phrases such as "the union makes the difference" and “The brand you trust” in advertising materials aimed at consumers, or "The two giants of pain you trust, finally together in one pill" in advertising materials aimed at health professionals, mislead public to believe that the product BRUFENON is associated with or related to the Ben-u-ron trademark and medicine, which are owned by Bene.

Additionally, Bene also argued that the advertising campaigns promoted by BGP directly compare the product BRUFENON with the product Ben-u-ron, violating the absolute prohibition on comparative advertisement laid down in the Medicinal Products Act and in clear breach of the Advertising Code.

In turn, BGP defended itself by stating that, when deciding to grant BRUFENON's AIM to BGP, the Infarmed necessarily considered that "BRUFENON does not give rise to confusion with the name of another medicine" and that "there is no risk that prescribers or patients could confuse the name of BRUFENON with other medicines or with any one in particular".

As to the advertising campaign, BGP stated that the abovementioned statements merely refer to the two substances active in the medicinal product, i.e. Ibuprofen and Paracetamol, a combination on the basis of which the specific benefit to the patient is derived.

In response, the Advertising Ethics Jury of the Self-Regulating entity decided only partially in favor of Bene. Accordingly, the Jury ruled that, on what concerns the campaign aimed at consumers, BGP’s claims, as well as the presentation of the product packaging and the colors of the new brand, induce the average consumer to think, not of the junction of the active substances of each medicine, but of the junction of the two trademarks of the two reliable medicines used by consumers to treat headaches. 

Furthermore, the Jury decided that the advertising transmitted on television is indeed likely to mislead the average consumer as to the commercial origin of the product and the respective industrial property rights, considering such advertising as misleading and liable to be classified as an unfair commercial practice. However, the Advertising Ethics Jury of the Self-Regulating entity also decided that there is no comparative advertising, since this new product is unique and therefore incomparable.

On the other hand, on what concerns the digital campaign aimed at health professionals, the jury ruled that there was no infringement of the legal provisions applicable to advertising activity, since in contrast to the advertising aimed at consumers, in this case explicit mention is made as to the origin of BRUFENON, the Brufen trademark.

This case shows that attention should be paid when using certain claims that can be considered misleading, if they are not properly substantiated.