There is a ban against advertising drugs to the general public. The Dutch Ministry of Health, Welfare and Sport (VWS) takes strong action and imposes fines of up to €450,000 per infringement. The District Court of North Holland imposed a fine, not on the drug manufacturer but on the PR agency that represented the manufacturer's interests. PR agencies and advertising agencies should take note! The background to the ruling was an email from the Edelman PR agency to a journalist at De Telegraaf about a new drug for diabetics. Edelman attached to this email a press release that was intended for the medical professional press. The journalist at De Telegraaf wrote a supportive article: "New pill for diabetics". The VWS regarded this as being banned drugs advertising and imposed a fine of €33,250 on Edelman. But should the email be classified as drugs advertising? And can a fine be levied on the PR agency, or should the VWS have charged the manufacturer? The judge classified this email as being undoubtedly a drugs advert: the apparent aim of the press release was to promote sales of the drug. The PR agency was legally responsible for this. According to administrative law, the infringing party' includes whoever "physically performed" the banned action, i.e. in this case the Edelman PR agency, which sent the email to the journalist at De Telegraaf. The court attributed the infringement to the PR bureau. It did not agree that Edelman was not itself responsible because it was acting on the instructions of the manufacturer. In this case, the manufacturer actually issued a clear instruction: the press release was intended exclusively for the medical professional press. The conclusion: PR agencies (and advertising agencies!) must pay careful attention that the advertising rules enforced by the government are not infringed. This applies to drugs advertising, but also for instance to tobacco advertising and health claims for foods. Infringements not only risk fines for the customer but also for the agency itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.