The Doctipharma case: a legal saga
On May 31, 2016, the Nanterre Commercial Court declared Doctipharma’s operations illegal as a technical solution for pharmacists wishing to operate an online sales site for over-the-counter medications, a case that was the subject of a previous article.
On December 12, the Versailles Court of Appeal overturned this decision, validating Doctipharma’s activities. In accordance with the regulations governing the online sale of over-the-counter medications, the possibility of outsourcing online drug sales offers new opportunities for healthcare professionals and digitalization specialists.
Update. Find all our publications related to this case:
- Court of Appeal’s challenge: the authorization of online sales by an intermediary, as well as our legal analysis of the decision.
- Doctipharma case: the limits of intermediation for the sale of medications
Authorized since 2013, the online sale of over-the-counter medications is restricted by the Public Health Code to pharmacists registered with the National Order of Pharmacists.
A subsidiary of Doctissimo, created in 2013 by the Lagardère Active group, Doctipharma aims to facilitate the digitalization of pharmacists’ activities by providing them with an online platform for selling their products—parapharmaceuticals and over-the-counter medications. Doctipharma also complements its offering by providing delivery services or making products available in-store for in-store pickup.
The current legal framework has been criticized, notably by the Competition Authority, regarding two draft rulings on the online sale of medications. The Authority criticizes the particularly restrictive framework for the development of this sector, which stifles any commercial initiative in terms of pricing, product ranges, or new services.
Doctipharma: A simple technical intermediary
In a fundamental legal distinction within the field of new technologies, the Court of Appeal classified Doctipharma as a mere technical intermediary, not a pharmacist.
The Court reiterated the platform’s terms and conditions, which explicitly state that the pharmacist is solely responsible for the online sale of their products. Similarly, the platform does not engage in marketing activities for medications and offers no commercial promotions.
This intermediary role is further undermined by the single payment system, which is simply a technical service provided to pharmacists.
This decision is likely to profoundly alter the future of online medication sales, pending further legal developments. Historically, this market has been marked by several rulings in favor of pharmacists, notably the 2014 ruling by the Paris High Court against the Enova website, which offered medications for sale remotely.
Doctipharma: Opinion of the Competition Authority
Find the full opinion issued by the authority:
On November 21, 2017, the French Competition Authority initiated an investigation on its own initiative to obtain an opinion on the pharmaceutical and medical biology sectors.
These sectors, whose regulation is based on the fundamental objective of protecting public health, are indeed of particular importance to the French economy and are facing modernization needs, linked in particular to the development of new technologies (online sales, telemedicine, new diagnostic tools, etc.).
The work undertaken by the Competition Authority thus focused on the suitability, with regard to the objective of protecting public health, of the economic model on which the activities of community pharmacists, intermediaries in the distribution of medicines in urban areas, and medical biologists are based.
Regarding community pharmacists and medical biologists in particular, one of the identified risks is that those established in France will suffer from a competitive disadvantage in a European context where foreign operators, better equipped economically and benefiting from more flexible regulations, are beginning to gain a foothold in the French market.
This is why French pharmacies must be allowed to undertake the necessary modernization of their operations. This will involve truly leveraging the opportunities offered by new technologies and developing new roles for community pharmacists, a goal desired by both public authorities and the profession itself.
Such modernization includes, in particular, the effective development of online sales, as well as the continued expansion of new pharmacist roles, such as vaccination and telemedicine.
