Turkey: Disputes On Health-Related Commercial Advertisements Under Consumer Law

Introduction

The Law on Protection of Consumers No. 6502 (the "Law") is published in the Official Gazette on November 28, 2013 and entered into force on May 28, 2014. Article 1 of the Law specifies the purpose of the Law as "to take measures that protect the health, safety and the economic interests of the consumer ... in order to inform and educate the consumers in accordance with public interest". Regulation and supervision of advertisements are considered as necessary tools to protect consumers. Therefore the Law includes detailed provisions on advertisements, which are supported by the secondary legislation, i.e. the Regulation on Commercial Advertisement and Unfair Commercial Practices (the "Regulation").

Under Turkish law certain sectors, such as health sector, are subject to additional restrictions on advertising due to their unique nature and purpose. As a general rule, health-related commercial advertisements are prohibited under Turkish law through various pieces of legislation. Administrative sanctions are set to be imposed by the Advertisement Board on the advertisers, advertising agencies and establishments broadcasting these advertisements in cases where the health-related commercial advertisements are considered to be contrary these restrictions. Since the Advertisement Board's decisions are deemed as administrative actions under Turkish administrative law, these decisions are subject to judicial review before administrative courts. The Council of State rendered many decisions in cases where sanctions on health-related commercial advertisements are challenged and requested to be annulled, and these decisions provide further guidance on how the restrictions must be interpreted and viewed, specifically what makes a health-related commercial advertisement illegal under Turkish law.

Commercial Advertisement under Turkish Law

Article 61 of the Law defines "commercial advertisement" as "announcements that are marketing communications made through written, visual, audio and similar methods in any medium by the advertisers, in order to provide sale or lease of a good or service, inform or convince target audience in connection with a trade, work, craft or profession". Scholars argue that there are different definitive elements in commercial advertisements, such as existence of promotion, commercial aim, intention to promote, purpose of increasing popularity of a product or service, use of a medium, and addressing the public, i.e. more than one individual.

Commercial advertisements are subject to regulations as they are considered to be inextricably linked to protection of consumers. Article 61 of the Law provides the main rules regulating commercial advertisements, which are elaborated and supported by the provisions of the Regulation. Article 77(12) of the Law specifies the administrative sanctions that may be imposed on advertisers, advertising agencies and establishments broadcasting the advertisements by the Advertisement Board in case of non-compliance to the regulations.

Prohibited and Restricted Advertisements in the Context of Health Sector

Article 61(2) of the Law provides that commercial advertisements must be in conformity with the principles adopted by the Advertisement Board, public morality, public order and personal rights; they also must be honest and true. Commercial advertisements that deceive or mislead the consumer, or abuse the consumer's lack of experience or knowledge, threatening the life of the consumer and safety of consumer's property, encouraging the acts of violence or inciting to commit crime, endangering public health, abusing the sick, elderly, children or disabled people are prohibited by Article 61(3) of the Law. In addition to these general rules, the Regulation provides more specific rules that need to be observed.

Article 26(1) of the Regulation titled "goods and services subject to special rules on advertisement" provides that "advertisements of goods and services that which are subject to special rules on advertisement, such as ... health services ..., must be in conformity with all the other rules on advertisement and promotion provided in the relevant legislation." Therefore, while examining the health-related commercial advertisements, specific legislations must be taken into consideration.

First of all, medical institutions and medical staff are not allowed to be involved in health-related commercial advertisements in order to prevent commercialization of human health and to observe public interest (common good) during the provision of healthcare services. Article 24 of the Law on Execution of Medicine and Medical Sciences No. 1219 provides an exception to the prohibition on medical staff being involved in commercial advertisement. This article stipulates that medical doctors are allowed to make announcements regarding the location of their clinic, working hours and their specialization; but they still cannot make advertisements regarding any other issue. 

Article 60(2) of the Regulation on Private Hospitals allows private hospitals to make promotions and inform public only with the purpose of preservation and enhancement of health. That being said, Article 60(1) prohibits actions and promotions made by private hospitals that are considered to be contrary to medical deontology and ethical rules, which could deceive or mislead individuals or aim to increase demand of individuals or constitute unfair competition vis a vis other private hospitals. In the same vein, Article 29(1) of the Regulation on Private Medical Centers for Ambulatory Diagnosis and Treatment explicitly provides that "medical institutions cannot be involved in advertisement". The Ministry of Health's Circular on Private Medical Institutions' Informatory and Promotional Activities No. 2013/15 provides that "Explicit and implicit advertisements going beyond being informative and promotional shall be prohibited."

Supervision of Commercial Advertisements and Sanctions in the Context of Health Sector

The Advertisement Board has the authority to supervise commercial advertisements and to impose sanctions of suspension, correction, monetary fine, or precautionary suspension up to three (3) months in case of non-compliance pursuant to Article 63 of the Law. There are numerous decisions rendered by the Advertisement Board wherein the Board imposed sanctions on the commercial advertisements made by medical institutions and/or medical staff that (i) exceed the informatory purposes, (ii) render the activities of the medical institutions and/or medical staff as commercial activities, (iii) aim to create demand, and (iv) constitute unfair competition vis a vis other medical institutions and/or medical staff. These are the general restrictions that a health-related advertisement is bound by.

Precedents concerning Advertisements in Health Sector

Under Turkish law, the Advertisement Board's decisions are deemed as administrative actions and it is possible to initiate an annulment lawsuit against the Advertisement Board's decisions before the administrative courts. Various decisions of the Administrative Board related to health-related commercial advertisements were challenged through annulment lawsuits and the Council of State, the highest administrative court in Turkey, rendered many decisions in these cases, which provide further guidance on the restrictive rules on health-related commercial advertisements. Below are just a few of these decisions that could be an example to what makes a health-related advertisement being contrary to the allowed framework of such advertisements.

15th Administrative Chamber of the Council of State, with its decision dated December 15, 2015 and numbered 2015/8726 E., 2015/8764 K., confirmed an administrative court's decision wherein it was concluded that mentioning the contact details of the medical doctors working at a hospital in an advertisement published in a newspaper makes the hospital's activities seem like commercial activities.

15th Administrative Chamber of the Council of State, in its decision dated October 1, 2015 and numbered 2015/4050 E., 2015/5574 K., stated that advertisement published in a magazine containing statements such as "... the new technology is available at [the name of the hospital]" and the "before and after" photos of the patients aims to create demand for the relevant hospital, which renders the relevant hospital's activities as commercial activities and constitutes unfair competition vis a vis other medical institutions.

15th Administrative Chamber of the Council of State in its decision dated September 18, 2015 and numbered 2015/6917 E., 2015/5437 K. ruled that provision of detailed description of the treatments provided at a dental clinic by mentioning that all those treatments are successfully applied by the dentists working at that clinic and presentation of photos of the clinic was again considered as aiming to create demand, rendering the clinic's activities as commercial activities, and constituting unfair competition.

15th Administrative Chamber of the Council of State in its decision dated December 19, 2011 and numbered 2011/11279 E., 2011/5725 K. ruled that an advertisement that is published in a newspaper regarding a discount in vitro fertilization procedure limited with 500 families and gives contact details of the relevant hospital is contrary to law, as the advertisement aims to increase the demand for the relevant hospital and commercialize its activities.

15th Administrative Chamber of the Council of State in its decision dated November 21, 2011 and numbered 2011/1472 E., 2011/4167 K. ruled that the articles published in a magazine, which states that an hospital receives patients transferred from another hospital abroad and gives out contact details and opinions of the medical doctors working at that hospital abroad, is a commercial advertisement aiming to direct more patients to the hospital and medical doctors receiving transferred patients.

15th Administrative Chamber of the Council of State in its decisions dated December 21, 2011 and numbered 2011/12449 E., 2011/5843 K. and dated November 28, 2011 and numbered 2011/12437 E., 2011/4435 K. ruled that an advertisement on prostate treatment titled "Stay always young, just like me", which also has the internet address of the relevant hospital, creates commercial appearance for the relevant hospital and aims to increase the demand for the relevant hospital.

9th Administrative Chamber of Ankara Regional Administrative Court in its very recent decision dated February 9, 2017 and numbered 2017/55 E., 2017/60 K. ruled that an advertisement suggesting that a public dental clinic to be a better clinic due to its high quality treatment facilities compared to private dental clinics directly incentivizes the patients to choose that public dental clinic, which is contrary to law in terms of restrictions in health-related advertisements.

In light of all these decisions, it is possible to say that health-related advertisements are considered to be illegal if these advertisements promote the health institution to attract patients, praise a medical procedure by implying that the procedure brings a positive effect despite that specific effect being irrelevant to that procedure, create attraction for the health institution by suggesting the institution is highly preferred, announce discounts on a medical procedure to steer patients into choosing the institution making that discount, suggest all the medical procedures are completed successfully in order to create a sense of confidence and thus patient demand. Surely these circumstances are mere examples of what constitutes an illegal health-related advertisement and any circumstance that exceeds the allowed framework of restrictive rules on health-related commercial advertisements would make the advertisement illegal.

Conclusion

The Law regulates commercial advertisement through the Regulation. Since the health sector is subject to special restrictions on advertisement due to special place in terms of public benefit, specific pieces of legislation become applicable when a health-related commercial advertisement is in question. As a general rule, health-related commercial advertisements are prohibited under Turkish law except for those aiming to inform the individuals. The Advertisement Board rendered many decisions in cases where health-related commercial advertisements are found (i) exceeding the informatory purposes, (ii) rendering the activities of the medical institutions and/or medical staff as commercial activities, (iii) aiming to create demand, and (iv) constituting unfair competition vis a vis other medical institutions and/or medical staff. The local administrative courts and the Council of State have adopted the same criteria while examining the legality of a health-related commercial advertisement by considering unique dynamics and specifics of each case.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions