Елена Самтынова
AndreyPopov / Depositphotos.com
ФАС России направила в территориальные антимонопольные органы разъяснения по вопросу рекламы лекарственных средств, медуслуг и медизделий. В частности, Служба напомнила1, что не допускается реклама лицензируемых товаров, либо реклама меддеятельности, подлежащей лицензированию, при отсутствии у организации или ИП соответствующих разрешения или лицензии (ч. 7 ст. 7 Федерального закона от 13 марта 2006 г. № 38-ФЗ «О рекламе», далее – Закон № 38-ФЗ, п. 46 ч. 1 ст. 12 Федерального закона от 4 мая 2011 г. № 99-ФЗ «О лицензировании отдельных видов деятельности», далее – Закон № 99-ФЗ). При этом информация о лицензии рекламируемого объекта, подлежащего лицензированию, к размещению в рекламе не обязательна, законодательство о рекламе не содержит такого требования.
Законом установлено, что реклама лекарственных средств, медуслуг и медизделий должна сопровождаться одним из трех видов предупреждения (ч. 7 ст. 24 Закона № 38-ФЗ):
о наличии противопоказаний к применению и использованию; о необходимости ознакомления с инструкцией по применению; о получении консультации специалиста.
При этом в зависимости от вида объекта рекламирования рекламодатель вправе самостоятельно определить, какой из этих видов предупреждения использовать в рекламе.
Согласно ч. 7 ст. 24 Закона № 38-ФЗ в рекламе лекарств, медуслуг и медизделий, распространяемой на радио, продолжительность такого предупреждения должна составлять не менее трех секунд, в телепрограммах, при кино- и видеообслуживании – не менее пяти секунд и не менее 7% площади кадра, а в рекламе, распространяемой другими способами, – не менее 5% рекламной площади (данная норма не распространяется на рекламу в местах проведения медицинских или фармацевтических выставок, семинаров или в специализированных печатных изданиях, а также на иную рекламу, потребителем которой является профессиональный конингент). Антимонопольная служба пояснила, что законом не предъявляются требования к размещению текста предупреждения в рекламе. Информация должна быть доведена до потребителя четко и ясно. Расчет площади предупреждения (надписи) осуществляется исходя из аналогии с размером «кегля шрифта», принятым в издательском деле.
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Отмечается, что в соответствии с ч. 8 ст. 24 Закона № 38-ФЗ реклама лекарственных препаратов в формах и дозировках, отпускаемых по рецептам, методов профилактики, диагностики, лечения и медицинской реабилитации, а также медизделий, для использования которых требуется специальная подготовка, не допускается иначе как в местах проведения медицинских или фармацевтических выставок, семинаров, конференций и т. д. и в специализированных печатных изданиях. Вместе с тем вопрос отнесения медизделий к изделиям, для использования которых требуется специальная подготовка, Законом № 38-ФЗ не регулируется, и в компетенцию ФАС России не входит. Поэтому при возникновении необходимости отнесения тех или иных способов воздействия на организм человека к медуслугам или к методам профилактики, диагностики, лечения или медицинской реабилитации, какого-либо товара к медизделиям, для использования которых требуется специальная подготовка, целесообразно обращаться в Минздрав России.
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1 С текстом Разъяснений ФАС России от 22 июня 2020 г. № ДФ/52241/20 можно ознакомиться на официальном сайте ФАС России (https://fas.gov.ru/documents/686828).
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