Advertising law: what you cannot advertise. Federal law "on advertising" in simple words. It is planned to ban advertising of harmful products

Advertising activities in our country are regulated. However, this happens throughout the civilized world. There is such a normative act as federal law 38 Federal Law “On Advertising”. We are talking about document No. 38-FZ, adopted on March 13, 2006. Its last edition was dated 03/08/2015.

What's the point?

Federal Law 38 “On Advertising” aims to eliminate unfair competition in this area. Its purpose is to protect consumers from harmful effects. Advertising that is capable of misleading or causing tangible harm to property or health is recognized as such. In addition, such intellectual property can undermine reputation or dignity.

What areas does the advertising law not apply to?

These include its political variety (including election campaigning and those related to the referendum), information that the law obliges to disclose or communicate to the consumer without fail, analytical and reference information material (market reviews, scientific research). All this has no purpose to promote the product.

Further information should be mentioned from authorities, state, local self-government, which is not of a commercial nature and not related to social advertising. The same kind of signs and indicators also belong to this category of intellectual property. It is worth mentioning announcements of various entities, both legal entities and individuals, not related to the generation of income.

What else?

The law also does not cover the information placed on the packaging (information about the manufacturer, etc.) and any design elements related specifically to this product and not to a third party.

That information about an object that is naturally “inscribed” in an artistic or scientific work, mentions the manufacturer or seller and does not serve a commercial purpose, also belongs to this category.

Federal Law “On Advertising” N 38 FZ – basic concepts

Let's define the terms. Advertising means any information, regardless of the type and method of placement, the addressee of which is a wide range of people. Its purpose is to attract attention to the mentioned product (service) for sale or promotion on the market.

Another concept is the object of advertising. It can be a product, its manufacturer or seller, an event (concert, festival, competition, competition), or an intellectual achievement. In a word, this includes everything that requires attracting attention.

A product is a product of activity (including work and services) intended for sale, exchange and other types of turnover.

Other concepts

What other terms does the federal law “On Advertising” use? There aren't that many of them. For example, so-called inappropriate advertising means that which contradicts the requirements of Russian legislation. But what are the subjects, i.e., the actors, called here?

Advertisers, manufacturers and distributors are people involved in the manufacture or sale of goods, respectively, bringing information into a commercial format and bringing it to the consumer in any way. These three categories of subjects are closely related to each other and serve as links in one chain.

As you know, he who pays calls the tune. Sponsorship advertising is one in which a mandatory condition is the mention of a certain person as a “philanthropist”.

In addition, there is a social variety. Under it, the federal law “On Advertising” means information of a non-commercial nature to achieve the goals of charity, etc.

The resolution of all the issues mentioned is within the competence of the federal antimonopoly authority, as well as its local representatives.

What is required from Russian advertising?

What kind can they be?

• any of its characteristics, consumer qualities, service life and shelf life, assortment and configuration;
• place of origin and availability of certificates, the possibility of purchase in a specific place or during a certain time;
• cost or price, payment procedure, discounts, tariffs and other monetary issues;
• the conditions under which delivery, repair, exchange, maintenance of this product are carried out, and its warranty conditions.

What other information may be unreliable?

Information about the various rules and timing of events, the number of prizes/winnings and the procedure for receiving them is unreliable.

This also includes any information about persons who are manufacturers or sellers of this product.

What should advertising not do?

There are certain actions that are unacceptable. The advertising law strictly prohibits them. This is, first of all, a call to illegal actions, cruelty and violence. Next, we should mention the creation of a threat to transport safety due to the similarity of some symbols to road signs. Another is the formation of condemnation of those who do not use the advertised product, or the use of pornographic information.

Advertising, as you know, is the engine of trade, but not all goods and services can be advertised on the territory of the Russian Federation. There is a section of legislation that clearly states all restrictions and prohibitions on advertising a particular product or service. The Federal Antimonopoly Service strictly monitors how this law is implemented. This service operates in accordance with the Federal Law on Advertising. In this article we will touch upon some sections of this law, which explains which products are prohibited from advertising in Russia.

What can't be advertised?

Any services requiring mandatory certification must have documents confirming the fact of certification.

Some types of goods are subject to partial restrictions, which in turn must also be followed. For example, advertising is allowed, but with certain restrictions for the following goods: alcoholic beverages, medicines, tobacco products, dietary supplements, financial services, securities, lotteries, etc. Such advertising should not contain information about the benefits of these types of goods and services, and should not encourage a person to buy this product. A person should not see in such advertising an incentive to improve his health with the help of these products, improve his well-being, or promote the harmlessness of these products and an unhealthy lifestyle. In addition, advertisements for this category of goods should not contain references to minors under 18 years of age, or contain photographs of these persons in images. When advertising alcoholic beverages and tobacco products, the organizer is obliged to point out the fact that excessive consumption is harmful to human health.

When organizing promotional events, for example, tasting samples of alcoholic products, it is also prohibited to involve minors in this or offer them tasting alcohol. Such promotions can only be carried out in places where retail sales of these types of alcohol are organized and subject to certain conditions.

It is planned to ban advertising of harmful products

Another ban is imposed on advertising of dietary supplements. In particular, when advertising them, it is prohibited to use words such as treatment, treat, etc. All expressions must be replaced by synonyms without using these words. It is also not allowed to advertise the services of traditional healers or representatives of occult organizations, unless they have special permissions.

In the Russian Federation there is no special law that establishes regulatory and legal relationships in advertising activities regarding the provision and circulation of medical services and medicinal products.

General legislative acts are:

• Federal Law No. 86 “On Medicines”;
• Federal Law of March 13, 2006 No. 38 “On Advertising”;
• Federal document “On narcotic drugs and psychotropic substances”;
• Federal Law “On the Circulation of Medicines”;
• Decree of the Government of the Russian Federation No. 970 “On approval of the Regulations on municipal supervision of the circulation of medical devices.”

The main document is considered to be the Federal Law “On Advertising” No. 38, which was adopted by the State Duma on June 14, 1995. Article 24 is devoted to the regulation of medical services; it is on this that the advertiser must rely when distributing advertisements in this area.

In June 2014, Federal Law No. 190-FZ dated June 28, 2014 “On Amendments to Article 24 of the Federal Law “On Advertising” was approved, according to which it was allowed to advertise medical services in all media.

According to Article 24 of the Federal Law “On Advertising”, promotion of medical services must be accompanied by a special message that warns of possible restrictions on their use. And also be accompanied by a recommendation about the need to familiarize yourself with the instructions for their use or obtain qualified advice from specialists. The duration of advertising in radio broadcasts should not be more than 3 seconds, and distribution in television broadcasts, cinema and video services can be extended to 5 seconds.

It is worth noting that the norms and requirements of Part 7 of Article 24 do not apply to advertising that is placed in places where medical and pharmaceutical exhibition congresses, classes and seminars are held. And also in printing publications for special purposes, the clients of which are exclusively medical and pharmaceutical employees.

Changes in the law on advertising

The main changes in the law regarding advertising of relevant services are the clarification of some medical terms. This is due to the fact that advertisers and distributors of advertising often misunderstood concepts such as medical services and medical activities. Medical services are medical interventions or a complex of medical care that are aimed at carrying out preventive, diagnostic and therapeutic actions. And the concept of “medical activity” is much broader.

According to changes in the law, it is impossible to use the exact names of medical services, namely:

• X-ray;
• cardiogram;
• prosthetics;
• all subtypes of tests, procedures and therapies, as well as the issuance of medical documentation.

It is prohibited to use phrases that directly relate to the provision of healthcare, as well as certain actions of doctors or medical institutions, for example:

• consulting;
• reception;
• body check;
• examination;
• medical assistance;
• treatment;
• operation, etc.

It is not allowed to mention specific medical equipment - x-ray, tomograph, electrophoresis and others, unless the sale of this equipment is advertised.

The text of part 8 has been published in a new edition:“Promotion of pharmaceutical products in forms and dosages issued according to prescriptions for drugs, appropriate treatment, including diagnostic and preventive methods using new technologies, is allowed on the territory of exhibitions and seminars intended only for pharmaceutical and medical employees.”

Find out what is offered to those who decide to move to the Far East.

Requirements for drug advertising

The Federal Code of March 13, 2006 No. 38-FZ “On Advertising” is divided into 2 main groups of requirements regarding advertising of medical services and medicines:

• basic norms. These requirements apply to advertising in general, including the promotion of medical services. The main requirements are integrity and reliability of information;
• special norms.

• directly contact persons under the age of majority;
• contain imaginary ideas about the advantages of the subject of advertising by referring to the fact of carrying out research required for municipal registration of the subject of advertising;
• promote the formation in a potential healthy buyer of a feeling about the need to use the subject of advertising;
• contribute to the formation of a feeling of unnecessary use of visiting doctors;
• guarantee one hundred percent results from the use of the medicine, as well as its safety, performance and absence of side effects;
• provide the subject of advertising as a positive dietary supplement;
• assert that the safety and (or) effectiveness of a medicinal subject is guaranteed by its natural origin.

The legislation of the Russian Federation strongly recommends compliance with all of the above rules. For non-compliance, Article 14.3 of the Code of Administrative Offenses establishes impressive penalties. Amount of administrative penalty: for Russian citizens - from 2,000 to 2,500 rubles; for civil servants - from 10,000 to 20,000 thousand rubles; for legal entities - from 200,000 to 500,000 rubles.

Allowed time for advertising

Responsibility for non-compliance with Russian regulations on advertising regarding the time, place and means of advertising distribution lies with the advertising distributor. This Federal Law does not regulate the specially permitted time for advertising medical coverage and medicines.

In accordance with the changes that came into force on January 1, 2015, the permitted time was established only for the promotion of alcoholic beverages.

Download the latest version of the advertising law

Distribution of the advertisement is complicated by the lack of judicial practice and official explanatory notes from higher judicial institutions. That is, on the one hand, advertising of medical services has many restrictions, and on the other, the Federal Law “On the Protection of Consumer Rights” defines the obligation to provide the consumer with the necessary and truthful information.

Samvel Grigoryan

Moscow city

Graduated with honors from the Faculty of Pharmacy of MMA (now First Moscow State Medical University) named after. I. M. Sechenov. He has been working in industry media for more than ten years.

“I’m not a piece of gold for everyone to like.” Whoever didn’t like to repeat this phrase, including Ivan Bunin, Vladimir Mayakovsky and Faina Ranevskaya. Advertising is also not worth the money. It can be different: successful and not very successful, unforgettable and quickly erased from memory, bright and inexpressive, witty and primitive. Advertising does not always evoke positive emotions in us, especially if it interrupts the viewing of an exciting film.

The paradox is that advertising material that evokes conflicting feelings can be perfectly remembered, thereby achieving the desired effect. For example, many with whom I had the opportunity to talk on this topic still have in their ears the heart-rending cry of a woman who opened the door of her apartment and found a ginger cat at the threshold. As you remember, he stood on his hind legs with a bouquet of flowers and a string of citrus fruits. However, something tells me that this masterfully made video is a successful video material in the field of advertising anti-allergy drugs. And, in my opinion, one of the most unforgettable.

You won't forget this

Our experts

Veronica Kazakevich

Director of the civil law department of the law firm "Cliff" (Moscow

Andrey Kolebtsev

Project Manager Ipsos Healthcare (Moscow)

Medicines are advertised in the media (including the Internet), in specialized publications intended for doctors and pharmacists/pharmacists, as well as directly in pharmacies. That is, advertising of drugs can be directed not only to the consumer, but also to medical and pharmaceutical workers who prescribe or recommend these drugs. The object of advertising in federal, regional, local media and the Internet can also be pharmaceutical and pharmacy organizations, for example, drug manufacturing companies, pharmacy chains, and individual pharmacies.

Recently, two opposing trends have been observed in this area.

What is better for society as a whole, the pharmaceutical industry, the pharmacy system: to implement one of these ideas or to maintain the current state of affairs?

Status quo: pharmaceutical advertising law

The topic of advertising of medicines and medical products is regulated by Article 24 of the Federal Law of March 13, 2006 No. 38-FZ “On Advertising”. Part 8 of this article states that advertising of prescription drugs, as well as medical products, the use of which requires special training, is permitted only in places where pharmaceutical and medical exhibitions, conferences, and other similar events are held, as well as in professional pharmaceutical and medical publications. In other words, Broad advertising of prescription drugs directed at consumers is prohibited.

The next immutable requirement is that advertising of drugs and medical devices must be accompanied by a warning about the presence of contraindications for their use, the need to read the instructions or obtain specialist advice (Part 7). If an advertisement reports the properties or characteristics of a drug, then this is permitted only within the limits of the indications contained in the instructions (Part 6).

Part 1 art. 24 also contains a number of restrictions. In particular, advertising should not guarantee the positive effect of the drug, its effectiveness, safety, or the absence of side effects (clause 8). It is prohibited to claim that the safety and effectiveness of a medicine are guaranteed by its natural origin (clause 10). It is impossible, through advertising material, to create the impression that it is unnecessary to see a doctor (clause 7), to persuade a healthy person to take the advertised medicine (clause 6), unless we are talking about prophylactic drugs, and also to convince the advertising consumer that he is unhealthy, has or other disease or disorder (clause 5).

According to clause 2, part 1, art. 24 of the Law “On Advertising”, in advertising of drugs it is prohibited to mention specific cases of cure for diseases, improvement of health as a result of the use of the advertised drug. Advertising should also not contain an expression of gratitude to people due to the fact that they used this drug (clause 3). Let us make a reservation that the requirements of paragraphs 2 and 3 of Part 1 of Art. 24 do not apply to advertising addressed exclusively to pharmaceutical and medical professionals (specialized printed publications, exhibitions, seminars, conferences, etc.).

It is also prohibited to create an impression about the benefits of the advertised medicine by referring to the fact of conducting studies required for state registration of the drug (clause 4). Of course, advertising material should not contain appeals to minors (clause 1). We would like to add that the requirements of paragraphs 1–8 also apply to advertising of medical products.

The expert pays attention

Advertising of dietary supplements is regulated by Article 25 of the same law. Veronica Kazakevich, director of the civil law department of the Cliff law firm, draws attention, in particular, to the following. If an advertisement announces that in a pharmacy you can purchase a biological supplement that helps with any diseases, this will be qualified as a violation of clause 1. Part 1 of this article, because advertising of dietary supplements should not create the impression that they are medicines and have medicinal properties. For example, explains Veronika Kazakevich,

Veronika Kazakevich also notes that the legislation does not impose any special requirements on the advertising of pharmacies as such. However, since consumers are primarily interested not in the pharmacy organization itself, but in the goods that are sold in it, advertising of such an organization is often carried out by mentioning the goods sold. In this case, medicines and other pharmaceutical products.

Of course, when advertising pharmacies, general requirements for honesty and reliability must be observed (Article 5 of the Law “On Advertising”). “This means,” emphasizes Veronika Kazakevich, director of the civil law department of the Cliff law firm, “that advertising should not mislead consumers, contain false information, incorrect comparisons with competitors, etc.”

Real or apparent violations of advertising legislation sometimes result in claims from regulatory authorities. Not only pharmaceutical specialists, but also most residents of large cities are familiar with the slogan “pharmacy at wholesale prices.” Veronika Kazakevich recalls that the Federal Antimonopoly Service of the Russian Federation initiated a number of cases in connection with its use in advertising, which, according to the FAS, misled consumers regarding the cost of medicines. “After all, in accordance with Art. 4 of the Federal Law of April 12, 2010 No. 61-FZ “On the Circulation of Medicines”, a pharmacy organization is an organization engaged in retail trade in medicines, and the wholesale price is the price of goods sold in large quantities (wholesale), which is lower than the retail price due to with savings on retail trade costs,” Veronika Kazakevich comments on the FAS’s arguments. Accordingly, the misleading of consumers in this case is that the price of a retail organization - no matter how small it may be - is presented as a wholesale price.

From TV to plates of change

In many segments of the economy, advertising budgets have fallen or stagnated in 2015. The medicinal segment is showing significant growth.

According to the Vi company, the largest operator of the Russian media advertising market, the share of the product category “medicine and pharmaceuticals” in the total budgets for federal placement of television advertising in the 1st–3rd quarter. 2015 was 26% (1st place), increasing by 5% compared to the same period in 2014. In second place are food products (18%), in third place are perfumes and cosmetics (also, by the way, partly pharmacy assortment). According to the same company, the most actively advertised category in newspapers in January-June 2015 was also the category “Medicine, drugs and dietary supplements” (market share - 24 %).

As for the trade press, a slightly different picture is observed here. Andrey Kolebtsev, project manager at Ipsos Healthcare, provides the following statistics: “The market for pharmaceutical advertising placed in specialized print publications, based on the results of three quarters of 2015, decreased by 7% in terms of placement costs (in rubles) and by 16% in terms of quantity advertising modules compared to the same period in 2014.” Andrey Kolebtsev also notes that a significant decrease in promotion indicators (advertising costs, number of advertising modules) was recorded among foreign companies; domestic ones show a slight increase in costs, without an increase in the number of modules.

Among the leaders in effectiveness are also handouts of information materials for customers (23.8 %), plates for change with drug advertising (21.7 %), promotional packaging (20.3 %), information stands (18.7 %), posters and posters (17.5 %), shelf indicator stickers (17.3 %), advertising pens (16.4 %). Since the first table and cash register are the meeting place between the visitor and the first patron, which “cannot be changed,” advertising plates with change are, according to the same study, the most frequently used advertising material in pharmacies (54.9 %).

Promotional bike

When the wheel has already been invented, it is very important not to waste time and effort in reinventing it. The current system of legislative regulation of drug advertising in the Russian Federation is close to the generally accepted one.

In almost all countries of the world - EU countries, Australia, Canada, Israel, Switzerland, Japan, etc. - the following scheme is in effect: advertising of over-the-counter drugs is allowed to be addressed to both pharmaceutical and medical specialists and consumers; prescription - only for specialists. Variations are possible: in particular, in Australia, advertising of some of the so-called “List 3” items — drugs that, although over-the-counter, require the professional advice of a pharmacist or doctor for safe use — also cannot be addressed directly to consumers. The United States stands apart in this case. This country allows direct-to-consumer advertising of prescription drugs.

Abroad, unlike the CIS countries, professional discipline is strictly observed - it is impossible to purchase prescription medicine without a prescription. And if so, then what is the point of addressing advertising of prescription drugs to the consumer, because in this case it is not he, but the doctor who makes the choice between one name or another.

The choice of a specific over-the-counter drug — for example, from a number of similar ones — can be made by the consumer himself as part of responsible self-medication. In this case, it is logical that he himself could be the recipient of an advertisement that would offer him one of the options to choose from (of course, this does not at all exclude consultation with a pharmacist or doctor, but only complements it). After all, we are not talking about dubious drugs, but about drugs that have state registration, with officially approved indications and proven effectiveness. Offering the opportunity to choose one or another over-the-counter drug is the benefit of advertising for the consumer.

Well, in conclusion, let’s return to the red cat mentioned at the beginning of the article. You may or may not like a specific advertising material, irritate or even frighten, but if it is made in compliance with all legal requirements, there can be no complaints against it. But our wishes as consumers of advertising are also of great importance. I'll express my opinion. I am quite loyal to ginger cats, but not so much to heart-rending screams. I doubt that “shock” is our way of speaking.