Once more within the reach of the consumer

by Ana Lúcia de Sousa Borda

October 24, 2012


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.



Ana Lúcia de Sousa Borda

Partner, Lawyer, Industrial Property Agent

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