It establishes that "(...they can remain within the reach of users to be obtained through self-service in the establishment"). The pharmacies and drugstores will therefore be able to make MIPs accessible once again to the consumer.
It seems appropriate to review the former situation. In
accordance with RDC 44 (17/08/2009), MIPs should remain behind the
counters of pharmacies and drugstores. The consumer needed to ask
for them. RDC 44/2009 intended to reduce self-medication, a very
common practice in our country.
However, its application resulted in a distortion: according to
ANVISA, studies demonstrated that there was a marked increase in
the sale of more expensive products. It was concluded that it would
be better to repristinate the old model. Therefore, MIPs can now be
displayed for free acquisition by the consumer and the
establishment must put up a warning on the risks of
self-medication. In addition to this, MIPs must be displayed for
sale in an area which is separate from the other products that are
sold in the self-service area.
But the matter needs to be seen from the perspective of unfair
competition. With MIPs within the reach of the general public, the
fight for the consumer will be ignited again, especially with the
use of attractive packagings, which can contain a set of colours,
shapes, dimensions, writing font and size, amongst other elements
with visual appeal and which can serve to draw their
attention.
Even though certain colours and formats may be used in the
packaging of products by different manufacturers, reproduction or
copying often occurs, which is capable of bringing about confusion
or, at least, undue association between the competing medicines,
which could put the health of the consumer at risk. In some cases,
reproduction or copying of the trademark of the market leading
medicine can also take place.
With the new rules, the number of legal battles related to the
similarity of trademarks and/or packaging of MIPs is expected to
increase. Our courts have been repressing these practices through
decisions that preserve the interests and rights of the consumer
and also of the manufacturers due to the unfair practice of a
competitor. In some cases, the condemnation determines the
substitution of the trademark and/or changes to the packaging and
also the payment of compensation for injury caused by the
infringer.
It is too early to say if the new rule will reduce
self-medication, but at least one objective will certainly be
achieved: the consumer will once again have the right to free
choice. However, he or she may suffer interference from unfair
competition as described above.
The current rules for the sale of products that are exempt from
medical prescriptions, in conjunction with the adequate repression
of dishonest behaviour, make a reasonably safe combination to
assure the right to free choice by the consumer.
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.