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New Measures for Advertising and Marketing of Medical Care



Under Article 86 of Medical Care Act, advertisements for medical care shall not be made in any of the following manners: (1) to publicize by making use of the name of other person(s); (2) to publicize by sale or gift of medical publications; (3) to publicize by making known family trade secrets or by public question and response; (4) to publicize by making use of content contained in medical publications; (5) to publicize by means of releasing an interview or news report; (6) to publicize in association or side-by-side with advertisements in violation of the preceding Paragraph; (7) to publicize by any other improper means. Besides, Paragraph 1 of Article 87 of Medical Care Act also indicates thatadvertisements containing content which implies or suggests medical practices shall be regarded as advertisements for medical care.
 
As the above mentioned Item (7) of Article 86 of Medical Care Act, "to publicize by any other improper means" is an indefinite legal concept, Department of Health of Executive Yuan (renamed as the Ministry of Health and Welfare; hereinafter MOHW), the central authority, promulgated the Interpretation No. WSY-0970219512on 30 December 2008 to clarifythe acts that fall within the concept of "any other improper means" in Item (7) of Article 86 of Medical Care Act.  Since the types and contents of medical advertisements in recent years has been becoming more commercialized, and the channels of publication are diverse and complex, the MOHW has intensified its efforts since 2016 September to November by releasing several legal interpretations to supplement and adjust the standard foresaid for the purpose of strengthening the management of medical advertisements and protecting people's health and rights.
 
MOHW promulgated the Interpretation No.WBY-1051666009 on 27 September 2016 to supplement the acts such as "advertise comparison of images before and after surgery or treatment", "advertise the images of celebrity" and "the behavior of offering discount, group buying, direct sales, coupons, prepaid fees, free medication or injection with intent to promote" as "any other improper means" mentioned in Item (7) of Article 86 of Medical Care Act. Meanwhile, the foresaid Interpretation of 30 December 2008 and others that contradict the Interpretation of 27 September 2016 are repealed.
 
The MOHW recently further promulgated the Interpretation No. WBY- 1051667434 on 17 November 2016 (titled "core interpretation of the scope of ‘any other improper means’ in Item (7) of Article 86 of Medical Care Act") and repealed the Interpretation of27 September 2016 after going through careful evaluation and consultation meetings with medical industry; such Interpretation took effect on 17 November 2016. The revision had been made as follows:
 
1.      "Advertise comparison of images before and after surgery or treatment" is revised to "use ‘comparison of images before and after surgery or treatment’ to advertise medical practice for the purpose of rather than explanationhealth education or medical knowledge in a medical care institution".
 
2.      "Advertise the images of celebrity" is revised to "experience sharing by person who does not have real experience; or endorsement or recommendation that does not fully disclose the correct information".
 
3.      "The behavior of offering discount, group buying, direct sales, coupons, prepaid fees, free medication or injection with intent to promote" is revised to "make medical advertisement by offering discount, group buying, direct sales, coupons, prepaid fees, free medication or injection with intent to promote".
 
In addition, MOHW further explained with the Interpretation No. WBY-1051667434A on the same day, reiterating the provision of Article 84 to Article 86 (i.e., the "medical care advertisement" Chapter in the Medical Care Act), and clarifying medical care institutions shall comply with Medical Care Act and Medical Institution’s Internet Information Management when they provide information about their institutions, which is restricted to general information, personnel, facilities, services, reservations, inquiries or contacts, medical or health knowledge.  Meanwhile, medical care institutions shall submit their domain names, web sites or web tools and the items which are mainly available for clicking on the web pages to the regional competent authorities for inspection, and shall not violate relevant regulations of medical advertisement.
 
Moreover, it declared the following matters:
 
1.         Concerning "comparison of images before and after surgery or treatment" in no case shall present in medical advertisement: the contents that can be presented in medical advertisements are listed in the Items (1) to (5) of Paragraph 1 of Article 85 of Medical Care, and "comparison of images before and after surgery or treatment" is not included.  It is not considered medical advertisements when medical care institutions use the comparison of images before and after treatment as explanation of treatment or health education, or post the photos mentioned above as case for treatment on their website.  However, there shall be no misrepresentation, exaggeration in the contents above, nor shall pretend medical advertisement as health education or medical knowledge.
 
2.         There shall not be endorsements and promotions in medical business: process of medical practices is risky, and its effect varies from person to person, thus no one shall make endorsement as spokesperson, nor shall stimulate unnecessary medical needs by means of promotion. In case of sharing personal experience and fully exposing right information, it may not be regarded as improper means of advertisement.
 
3.         In addition, with respect to illegal medical advertisements published throughvideo and audio channels, public transportation, public transportation stations, large billboards, or within 200 meters from school, the regional competent authorities are suggested to strictly enforce the law because those advertisements might have great impact to the public and student.
 
In conclusion, in response to improvement in technology, the competent authority has taken stricter measures to manage medical advertisements and marketing, medical care institutions, its collaborative drugstore, and/or pharmacy, shall take caution to avoid violation of relevant regulation while planning their operation works in the future.
 


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