ECJ Gives Public Bodies the Green Light to Induce Doctors to Prescribe Cheaper Drugs

摘要

It comes as a shock to the innovative pharmaceutical industry that, following the European Court of Justice's 22 April ruling in Association of the British Pharmaceutical Industry v Medicines and Healthcare products Regulatory Agency, public bodies forming part of a national health service are entitled to offer financial inducements to doctors to prescribe cheaper medicinal products, The ruling has important implications for member states throughout the European Union in terms of how they manage their public health expenditure.The ECJ's ruling dashes the hopes raised by Advocate General Niilo Jaaskinen, who in his 11 February opinion on the case tackled the issue from the patient safety perspective and concluded that European advertising legislation precludes public bodies from implementing prescribing incentive schemes. Unfortunately it seems that - in the eyes of the ECJ - the independence of prescribers is impermeable to financial inducements offered by national public health authorities. This policy-dictated ruling is difficult to stomach because it is inconsistent with the objective of the European advertising legislation, particularly in the light of Damgaard, which concerned the application of the advertising legislation to an article published by an independent journalist referring to an unlicensed medicinal product.The ABPI's complaint about prescribing incentives was based on Article 94(1) of Directive 2001/83/EC (as amended) (referred to hereafter as the Medicinal Code), which prohibits inducements to prescribe. Article 94(1) provides: