Online sale of medicinal products: End of prohibition for pharmacists to use paid referencing to increase their visibility over the Internet

French pharmacies will now be able to use paid referencing to advertise the products they are authorized to sell online. Indeed, in a decision dated March 17th, 2021 (No. 440208), the Conseil d'Etat ruled that the prohibition of paid referencing of online medicinal product sales websites was illegal and urged the French Health Minister to repeal, within two months, the contested provision contained in the decree dated November 26th, 2016 relating to the technical rules applicable to medicinal product e-commerce websites. The said provision, which the French Health Minister had refused to repeal in his decision dated February 9th, 2020, previously prohibited the listing in search engines or price comparators in return for payment.

Effective no later than May 17th, 2021, French pharmacists will now be allowed to advertise online using paid referencing to sell products and prescription-free medicines (over the counter medicinal products).

As a reminder, the Conseil d'Etat had already ruled on this referencing issue, in a decision dated April 4th, 2018 (No. 407292), and had considered, at that time, that the provision prohibiting paid referencing for pharmacy websites was legal and could not be considered as imposing disproportionate restrictions on e-commerce of medicinal products with regard to the objective of protecting public health.

By contrast, in a judgment dated October 1st, 2020 (Case C-649/18), the Court of Justice of the European Union ruled that a Member State could not prohibit pharmacies that sell prescription-free medicines from using paid referencing on search engines and price comparison websites. Such a prohibition would be permissible only if it were established before a national court that such a prohibition is appropriate to ensure the achievement of the objective of protecting public health and does not go beyond what is necessary in order to attain that objective.

Without directly referring to the above-mentioned judgment of the Court of Justice of the European Union, the Conseil d'Etat explains in its recent decision that the prohibition implemented so far was not sufficient, despite what the French Health Minister claimed, to achieve the objective of preventing from over-consumption of medicinal products and their misuse, given that French customers can access websites located in another European Union Member State that are not subject to the same referencing prohibition.

On the contrary, this specific French policy created a disadvantage for French pharmacies compared to websites located in other European Union countries, which had a better visibility and were therefore likely to concentrate a greater proportion of medicinal product sales and thus weaken the position of French pharmacies.

The Conseil d'Etat rejected the last argument put forward by the French Health Minister insofar as it was not established that the prohibition of paid referencing only for pharmacies located in France would be likely to preserve the relationship of trust between the patient and the pharmacist, since it would make it easier for French customers to purchase medicinal products from websites that are not subject to the ethical guarantees applicable to pharmacists based in France.

This Conseil d'Etat’s decision dated March 17th, 2021 is a major step forward for the online sale of authorized products by French pharmacies. As a reminder, the online sale of prescription-free medicines is allowed in France since January 2nd, 2013, but the rules governing it are strict, which constitutes a real difficulty to its deployment.