Presentation
The French principle of prohibiting advertising by doctors
French regulations governing physician advertising are particularly strict and subject to increased oversight by the National Council of the Order of Physicians (CNOM).
Article R4127-19 of the Public Health Code, which sets out the rules of medical ethics regarding advertising, prohibits direct or indirect participation in any advertising, particularly commercial advertising, related to physicians’ professional activities. This prohibition extends to any advertising methods or means of creating a commercial image.
This article is supplemented by other provisions specifying the information and statements that practitioners may publish depending on the communication medium—prescription forms, directories, and professional nameplates.
The CNOM (National Council of the Order of Physicians) advocates strict application of these rules regardless of the practitioner’s status, sector, or form of employment—whether self-employed or salaried. The CNOM therefore recommends a number of requirements for professional websites, while acknowledging distinctions between professional websites and physicians’ personal blogs.
Physician advertising: The foreseeable evolution of regulations
Legal uncertainties arising from evolving European case law regarding the continued prohibition of direct and indirect advertising, the public’s legitimate interest in disseminating general health information accompanied by individual data on healthcare professionals, and the poorly managed proliferation of health information and access to care facilitated by digital technology all point to the need for significant changes in French regulations.
The issue of communication by healthcare professionals is addressed in diverse ways in other European countries, which permit communication subject to certain restrictions. Similarly, recent developments in the CJEU’s position (May 4, 2017, and October 23, 2018) on this matter are likely to disrupt French regulations.
The CJEU has ruled that EU law precludes national legislation that generally and absolutely prohibits all advertising related to healthcare services. This potentially undermines the recent decisions of the French Council of State on this matter.
Professional bodies have expressed serious reservations about the scope of these decisions. The French National Council of the Order of Physicians (CNOM) has published numerous documents highlighting the need for a distinction between commercial advertising and objective, proportionate information for patients. Some professional bodies have already submitted proposals to the Ministry of Health for revising their codes of ethics on this subject.
Finally, on May 3, 2018, the Council of State issued a study on proposed reforms to the rules applicable to healthcare professionals regarding information and advertising, notably advocating a principle of free communication.
Latest developments: The Groupon case versus regulated professions
Groupon operates a platform that allows users to purchase products and services at competitive prices through group buying.
In 2017, after noticing the sale of several services provided by doctors and dentists on this platform, the French National Medical Council (Conseil de l’Ordre des médecins) and the National Council of the French National Order of Dentists (Conseil national de l’Ordre des chirurgiens-dentistes) launched numerous boycott actions against Groupon:
- Sending letters to doctors and medical centers potentially interested in the platform’s services;
- Systematic filing of complaints against practitioners using Groupon;
- Several appeals filed with the French Directorate General for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF), the French Agency for the Safety of Health Products (AFSSAPS), the public prosecutor’s office, etc.
In this context, Groupon filed two complaints with the French Competition Authority against the CNOM (National Council of the Order of Physicians) and the CNOCD (National Council of the Order of Dentists), arguing that these measures constituted a boycott and denouncing “a communication campaign and a harassment strategy” targeting doctors and dentists using its services.
These practices allegedly reduced competition in the online promotion market for medical and dental services and discouraged healthcare professionals from using its services for fear of disciplinary action.
On January 16th, the French Competition Authority declined jurisdiction in favor of the administrative courts, while emphasizing the need to amend French legislation concerning the general and absolute ban on advertising by doctors and dentists in order to bring it into line with European law.
Under these circumstances, it appears inevitable that the rules governing advertising by doctors will be relaxed in order to encourage its development and harmonize European practices.
