Public Consultations and the Risk of Covert Medication Advertising
The democratic process of public consultations in Brazil represents one of the most solid pillars of civic participation in public administration. Whenever the government intends to amend regulations or incorporate new technologies—such as through the National Commission for the Incorporation of Technologies into the Unified Health System (CONITEC), an opportunity arises for civil society to make its voice heard. It is within this space that stakeholders, including patients, physicians, and organizations—can help shape public health outcomes. However, the growing mobilization by pharmaceutical and medical device companies to encourage such participation has sparked a sensitive ethical and legal debate: the risk that this encouragement might be construed as covert advertising of prescription-only medications to the general public.
Brazilian legislation and regulations are strict and clear regarding the promotion of prescription drugs. Federal Law No. 6.360/1976, Anvisa Resolution RDC 96/2008, and even the codes of conduct of entities such as Interfarma restrict any advertising activity for these products exclusively to prescribing professionals. The objective is to protect citizens from commercial messages that could lead to the inappropriate use of medications. On the other hand, these same rules allow companies to disseminate non-promotional information focused on health awareness, prevention, and diagnosis. It is precisely at the intersection of the duty to inform the public about a consultation and the prohibition against promoting a product that a challenge regarding compliance and transparency arises.
It is legitimate—and indeed necessary—for pharmaceutical companies to inform stakeholders that a new therapy is being evaluated for inclusion in the SUS (Brazil's Unified Health System). After all, the so-called "qualified contributions" from those living with the disease or providing care to such individuals are fundamental to CONITEC’s decision-making process. However, these calls for participation must not give the impression of being disguised marketing materials. The use of ambiguous persuasive language, excessive emotional appeals, or imagery that highlights commercial benefits over technical data can transform the legitimate provision of information into illegal advertising.
Striking the right balance in this matter requires sobriety and ethical rigor. Calls for public participation should be treated as an extension of the right to adequate information, given that the content of these consultations is already public by nature. Nevertheless, companies must ensure that the substance of such communications remains strictly informative and neutral. Any misstep that could be interpreted as commercial inducement not only exposes companies to severe regulatory penalties but also undermines the credibility of the institutions themselves and the democratic process of technology adoption. Public participation is vital to strengthening the Unified Health System, but it must be driven by the public interest, free from the shadow of corporate marketing.
By Marcos Levy
Partner at Lopes Muniz Advogados and Life Sciences specialist.