Portuguese Legal Regime On Health Advertising Practices

Author:Mr Ricardo Henriques (PBBR.A)
Profession:Global Advertising Lawyers Alliance (GALA)

On November 1st, 2015, the Portuguese legal regime on health advertising practices, approved by Decree-Law No. 238/2015, of October 14th, entered into force, being applicable to all stakeholders, whether public or private, which benefit from or participate in the conception or diffusion of a health advertising practice.

The need for review of health advertising policies was triggered by an appeal to the Ministry of Health of professional health associations in 2014 on the insufficient regulation on health services, demanding that measures be taken to impose an end to deregulation that was verified in advertising health services.

In particular, the concern focused on the complaints to authorities of several cases in the area of oral health, in which free services, screenings and check-ups were advertised to induce unnecessary treatments to patients as well as cards with discounts, lifetime guarantees and, among others, contests and cards for the purchase of treatments in buying sites.

This legal regime innovatively introduces in the Portuguese legal system the concept of health advertising practice, which can now be deemed as any commercial communication, telemarketing, telephone promotion, practice, product placement, as well as the information that has the purpose or effect of promoting among users: (i) any action and services aimed at the protection and maintenance of health and the prevention and treatment of diseases, with the aim of marketing, as well as (ii) any ideas, principles, initiatives or institutions aimed at protection or maintenance of health or prevention and treatment of diseases.

The approved legal framework governs the advertising practices on interventions related to the protection and maintenance of health and prevention and treatment of diseases, including offering diagnosis and any treatment or therapies, being also applicable to unconventional therapies.

For this purpose, the health advertising practices legal regime not only identifies a number of prohibited practices, but also sets forth the general principles that these practices shall...

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