The Italian Competition Authority initiates a proceeding against the sale of a generic drug for the treatment of HIV infections sold as a remedy to fight the COVID-19 virus (Kaletra)

1.Introduction

The spread of the Covid-19 pandemic is unfortunately accompanied by the equally rapid one of unfair commercial practices in Italy. A worrying scenario, also for potential, serious effects on people’s health, on which the Italian Competition Authority (‘ICA’) continues to keep the spotlight on, initiating proceedings against many online platforms, from the largest to the smallest, whenever it deems it necessary. The attempts to extort money from consumers, relying on the anxiety and fear related to the contagion from Covid-19, are in fact many and do not spare any commercial genre: detergents, cosmetics, supplements, fundraisers, “miraculous” drugs, everything lends itself to swindle consumers, relying on fears generated by the ongoing epidemic.

In this context, ICA’s intervention mainly concerns the infringement of unfair commercial practices law, as per Art. 20 of the Italian Consumer Code. Commercial practices can be defined as unfair in presence of two cumulative conditions: they are i) contrary to trader diligence, and ii) likely to distort the economic behaviour of the average consumer (Art. 20 Cons. Code).

In addition, Consumer Code distinguishes between two categories of unfair commercial practices:

i) “misleading commercial practices” i.e. actions or omissions that deceives or is likely to deceive the average consume thereby causing him to take a transactional decision that he would not have taken otherwise (Articles 21 - 23 Cons. Code) ii) “aggressive commercial practices” i.e. the use of such harassment and coercion as to significantly impair the average consumer’s freedom of choice or conduct and thereby causing him to take a transactional decision that he would not have taken otherwise (Art. 24 26 Cons. Code).

Below, a brief review of the cases (suitably reported in recent days on the AGCM website at www.agcm.it) that made the ICA’s intervention necessary to deal with the misleading advertising of anti-coronavirus drugs and medical devices.

2.Anti-coronavirus drugs

Given the alarm for the growing number of infections and deaths, anti-coronavirus drugs are not lacking. On the 17 th of March 2020, the ICA launched a proceeding (no. PS11723) against the sale of the generic drug “Kaletra”, an antiviral for the treatment of HIV infections. This medicine was advertised and sold online (at the price of 634.44 euros) as the “only drug against Coronavirus (Covid- 19) and the only remedy to fight Coronavirus (Covid -19)” even if, at present, there is no effective cure to fight the virus, as declared by the world health authorities.

In decision no. 28173, the ICA, considering the advertising “misleading and aggressive”, ordered to obscure the website, due to the urgent need to stop the spread of an extremely serious practice. The Authority also stressed that, although the site suggested that the online sale of the product is lawful and the trader operated in a context of full legality, the online sale of drugs such as such drug is not allowed in Italy as it is subject to the presentation of a medical prescription.

Precisely, Italian legislation does not allow the online sale of prescription drugs because they can only be sold in pharmacies. Therefore, only non-prescription-drugs can be legally sold online, under the following conditions provided for by Article 112-quater of the Drugs Code (Legislative Decree No. 219/2006):

i) Only pharmacies and para-pharmacies are allowed to sell non-prescription drugs online. ii) Pharmacies and para-pharmacies must obtain prior authorisation from the competent region or from other authorities delegated by the region. iii) The e-commerce platforms selling drugs must include a logo attesting their authorisation to sell drugs online. iv) Pharmacies and para-pharmacies authorised sell online must be registered with the Ministry of Health.

3.Medical devices

Then, the ICA handled also medical devices that claim to be able to diagnose the virus “comfortably at home” (case no. PS11727). This is the “Covid-19 Rapid Test”, which would allow people to self- diagnose, easily and quickly, any infection, at a price of 24.86 euros. The product in re was advertised as a diagnostic medical device intended for home use, by people who are not experts in diagnostic tests, in order to quickly and reliably self-diagnose the possible contagion from Covid-19. In fact, the information provided by the trader on the effectiveness of the test, its intended use and its experimental character appeared ambiguous, confused and obscure. In case no. PS11727, the ICA considered, in particular, that the methods of promotion and sale of the product were prima facie deceptive and aggressive, suitable for altering the consumer’s evaluation capacity. Indeed, the trader exploited the alarm raised by the constant increase of subjects infected by Covid-19 and by the mortality risk resulting from the contraction of the virus, as well as by the dissemination of news about the alleged difficulties of supplying support by public health facilities. Hence the decision (no. 28202) to adopt a measure for obscuring and suspending the site (http://testcoronavirus.shop/it), motivated by the need to stop the spread of an extremely serious practice, such as to make the intervention of the Authority urgent and indifferent.

Another case (case no. PS11732 and decision no. 28205) involving medical devices concerns oxygen therapy products allegedly having antiviral and Covid-19 contrast properties. More specifically, according to ICA’s decision, the website www.oxystore.it (owned by Genium S.r.l.) offered oxygen concentrators (the so-called prevention kit) not only boasting its curative properties in connection with Covid-19 but also presenting it as “the last bastion” in a context of scarcity of hospital beds and lung ventilators. Therefore, the Authority established that the claims about the healing and preventive properties of these products were aggressive and misleading. Consequently, given the current emergency situation and the absence of contraindications, the ICA ordered the removal of the contested claims as a matter of urgency.

4.Platforms

The ICA is also investigating Big Players in e-commerce, such as, for example, the e-commerce platform www.wish.com, Amazon and Ebay. The proceedings are part of the wider monitoring activity that the Authority is carrying out in the e-commerce sector during this specific time of health emergency.

On the 31 th of March 2020, the Authority launched an investigation and opened a sub-proceeding (case no. PS11734) to order, if necessary, an interim measure against ContextLogic Inc, the US company that owns the www.wish.com platform and its subsidiary ContextLogic B.V., a company incorporated under Dutch law, which provides market place services to consumers resident in Europe.

The subject-matter of the proceedings was the sale on the said platform of products for the prevention of contagion from Covid-19. In particular, the investigation involved three aspects: i) the offering of test kits for Covid 19 home diagnosis, based on the detecting of coronavirus antibodies in human blood, serum or plasma, despite precise indications from the health authorities on their unreliability, so as to mislead consumers and also endanger their health; ii) the use of claims on specific effectiveness of some products (mainly filtering face masks) in terms of protection and/or the fight against the COVID 19 virus; iii) the high level of prices recorded in recent weeks with reference to these products will also be investigated.

However, the measures proposed by the parties in order to intervene on the contested claims led to the conclusion of the proceedings without any measures being taken. On the 12th of March 2020, the ICA announced the initiation of a proceedings (no. PS11716 - PS11717) also against Amazon (Amazon Italia Customer Service, Amazon Eu, Amazon Service Europe) and Ebay (Ebay Italia and Ebay Gmbh) platforms. According to the press release, the subject matter of the investigation concerns both the increased prices and the alleged effectiveness properties of sanitary products against the coronavirus contagion.

Version PDF

Auteurs

Citation

Cristina Poncibò, Francesca Bichiri, The Italian Competition Authority initiates a proceeding against the sale of a generic drug for the treatment of HIV infections sold as a remedy to fight the COVID-19 virus (Kaletra), 17 mars 2020, e-Competitions March 2020, Art. N° 94358

Visites 202

Tous les numéros

  • Latest News issue 
  • Tous les News issues
  • Latest Special issue 
  • Tous les Special issues