Consumer Protection Act Brief – 14/01/2011

14 January 2011|In Consumer Protection Act Briefs

In this issue:

  • Health products get new marketing code

Health products get new marketing code

A new marketing code for health products, which was developed by the industry, has been adopted by the Advertising Standards Authority of South Africa (“ASA”), in a move which should lead to better regulations of the way medicines, devices and laboratory tests are promoted.

Furthermore, the industry plans on launching a Marketing Code Authority to enforce rules contained in the code and penalise companies that breach them, a move which has been supported by the Department of Health and the Medicines Control Council.

Penalties will include publically “naming and shaming” offenders, imposing fines of up to R300 000 and requesting that the Medicines Control Council deregisters offending products, ultimately banning their sale in South Africa.

The ASA is currently responsible for investigating complaints brought to it by consumers or companies. However, it has been criticised for failing to appoint independent medical experts to help it probe complaints, relying instead on those brought in by defendants.

While the ASA will still have a role in hearings and providing operational expertise, complaints about the marketing of health products, excluding complimentary medicines, will be referred to the Marketing Code Authority.

Interim board chairman, Eli Lilly CEO Jacques Blaauw said, “We are not going to cover all the cowboys, and the code won’t deal with perverse (pricing) practices.” Section 18a of the Medicines Act, which makes it illegal to offer bonuses and kickbacks on drugs, needed more stringent regulating in order to combat the host of practices that have sprung up to circumvent the law, include co-marketing fees, shelf fees and free services in lieu of kickbacks.

Industry sources have expressed their frustration at the failure of the Department of Health to use the Medicines Act to empower the health minister to publish regulations for a marketing code after a draft code was published for comment in 2004, but the department made no further move to develop it after it provoked an outcry from the complementary medicines industry, particularly over a statement that marketing medicines without proof of their safety and efficacy was fraud.

The Consumer Protection Act, which is due to come into effect on 1 April should offer patients some additional protection.

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