Hogan Lovells Publications | 19 April 2018

Connecting Europe - False advertising in life sciences

In view of the success of our first edition of “False Advertising in Life Sciences”, we are proud to introduce our second edition which is even more thorough.

As you know too well, marketing of medicinal products and medical devices is highly competitive. Successful advertising often depends on making forceful statements in relation to a product’s performance or in comparing a product with a competitor’s product. As advertising is highly regulated, especially in the Life Sciences industry, these statements can cause legal problems and possibly invite legal sanction. Companies are keen to challenge competitors’ advertising which they believe to be inaccurate or misleading, as well as to robustly defend their own marketing claims in the event of a challenge from a competitor or a regulator.

Due to the international nature of the Life Sciences sector, challenging misleading advertising statements is complex. New regulations make it easier to enforce cross-border judgments. In addition to the different options for taking action against misleading advertising before state courts and public authorities, in many countries, the role of self-regulatory bodies is becoming increasingly important.

When marketing your products, you may wish to draw comparisons with your competitors’ products. Or you may want to make forceful statements about your products, but worry about them being challenged. Perhaps your competitors are making claims about the quality or efficacy of their products or services that you believe are not factual, or a competitor may have made a statement about your company or product that is false or misleading.

We can help. We have extensive experience in all facets of misleading advertising and we have handled these cases throughout Europe and across the world. We anticipate potential problems before they arise, working closely with you to clear potentially problematic marketing campaigns before you launch them. We analyze and evaluate product promotions and advertising in the light of regulatory frameworks and other restrictions. We also assist you in vigorously defending your marketing campaigns against claims of misleading advertising before the courts, the public authorities or the self-regulatory bodies and actively pursue claims against your competitors who make misleading statements about their products or yours.

Our advertising lawyers operate as an integrated international team of professionals, enabling us to provide coordinated worldwide and cross-border advice. Our understanding of the common features of advertising and marketing laws across multiple jurisdictions equips us to advise you on the legal aspects of advertising throughout the world. Not only do we have extensive experience in advertising, but our Life Sciences lawyers also have a breadth of experience in regulatory matters. This cooperation helps us to achieve the optimal results for our clients.

Only recently, we were able to defend two of our client’s medical devices which our client’s would not be able to market any longer had we not prevailed. We live and work for these victories.

In addition to our first version, we have included a part on the legality of advertising a medical device before a CE mark has been granted as well as on the legality of advertising unpublished study results “data on file” as clients keep asking us about both topics.

We trust that this publication is of interest to you and provides a helpful insight and overview.

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