In practice, one can find two opposing normative views of direct-to-consumer prescription drug advertising: the first prohibits direct advertising of prescription drugs to the general public (e.g. in Slovenia and Germany), whereas the other permits it according to specific regulatory restrictions (e.g. in the USA).
To confirm or reject the hypothesis that the prohibition on the direct-to-consumer advertising of prescription drugs is legally justified in the Slovenian regulatory framework, we analysed the reasons, from a comparative legal perspective, that support the prohibition on direct-to-consumer advertising of prescription drugs as well as the reasons in support of the freedom to directly advertise prescription drugs to the general public.
Among the reasons in favour of the prohibition on advertising, we mainly identified the arguments of consumer protection, the negative impact of such advertising on the patient-doctor relationship, and the influence on public funds. The reasons identified that lend support for the freedom to directly advertise prescription drugs mostly include free economic initiative and the related freedom of commercial expression, the right to information (associated with the right to health) and the positive influence of such advertising on the patient-doctor relationship.
An analysis of our findings concerning all the arguments highlighted above shows that lying in the background of the fundamentally different approaches to regulating the direct-to-consumer advertising of prescription drugs is a varied understanding of the relations between the informative and promotional components of ads with regard to the dissimilar positions held by stakeholders. The regulatory frameworks of the countries studied in the doctoral thesis have different evaluations of the impact of these two advertising components on various values which should be protected by law (e.g. consumer protection, patient-doctor relationship, public funds, freedom of expression, right to information etc.). The different approaches taken by these jurisdictions to regulate this activity stem from the fact that the USA, more than Germany and Slovenia, recognises the informative role of such ads and/or attribute greater importance to their informative component.
Based on the analysis conducted, we established that the Slovenian regulation strives to restrict the promotional component of ads; it attempts to enable those contents that are (predominantly) informative in nature by formally excluding the application of the rules that regulate drug advertising. In this respect, the Slovenian regulation satisfies the requirement to protect consumers, considers the aspect of public funds and protects the patient-doctor relationship; on the other hand, it introduces – to a smaller extent than in the USA – the right to inform patients through direct advertising. In view of the above, we believe the formulated hypothesis should be confirmed, namely that the restriction on advertising introduced by the Slovenian regulation is legally justified.