This article has been written by Ms. Aarshiya Punera, a second-year student at Law Centre-II, Faculty of Law, University of Delhi.
ABSTRACT
The Internet has more or less become accessible to all. It has penetrated the lowest strata of society completely transforming the way health consultations and feedback happen today. With “E-Pharmacies” becoming the new normal post-COVID-19 pandemic and the Indian government’s promotion of e-consultations through the e-Sanjeevani portal, the digitalization of the healthcare sector has encouraged Pharma companies to strategize and strengthen their social media presence. This article aims to understand how pharmaceutical companies use social media and its implications. It discusses the advantages of having a genuine social media presence for pharma companies. It aims to recognize the key regulatory compliances in place to check any exploitative tendencies adopted by the companies. It also aims to examine the Intellectual property rights-related challenges that are faced by pharmaceutical companies while using and promoting their drugs on social media.
Keywords: Social Media Marketing, Intellectual Property Rights, Pharmaceutical Companies, Regulations, Information Technology Act 2000, Misleading Advertisements
INTRODUCTION:
The Indian population demographic consists of a majority of younger people. This young population is tech-savvy, financially sound, and sedentary. Many diseases occurring due to a sedentary lifestyle like Diabetes, Obesity, High Blood pressure, etc are on the rise. Therefore, the healthcare industry is transforming to cater to the needs of this young population. This in turn has changed the way pharmaceutical companies interact with their consumers.
“E-pharmacies” and online consultations are very popular with the people. With one tap, one gets to book an online appointment with the doctor, can compare medicines, and take note of the doses required to curb the ailment. The use of social media has also changed how Pharma companies interact with their customers. Surveys and feedback are easier, faster, and simpler. Companies like AstraZeneca, Pfizer, and Johson & Johnson have built an impressive social media presence to build trust among their customers and attract possible clients. (healthcare professionals and consumers)
HOW DOES THE PHARMA INDUSTRY USE SOCIAL MEDIA?
Gone are the days of door-to-door campaigning by the company salesman and cajoling the medical professionals to try and prescribe their pharmaceutical product by the Medical Representatives. Thanks to the regulations in place and scrutiny by consumer courts, how pharma companies commercialize and promote their drugs has changed for the better.
Today, most of the pharma companies have an online presence. From big global pharma giants to novice startups, every pharma company posts, tweets, or reacts on social media! This is fundamental to building a direct, genuine, and trustworthy connection with potential consumers.
Social media marketing helps companies promote their products, create market awareness about the same, get feedback on it, and conduct surveys to cater to the specific needs of medical professionals and their consumers. It also helps them gain the trust of the consumers, build goodwill, and monitor their market presence vis a vis its competitors.
For the people on the other side of the internet, i.e. the consumers and the medical professionals, the social media presence of the pharma companies helps them to share their expert opinions and experiences with the companies’ products.
WHY IS THE USE OF SOCIAL MEDIA BY PHARMA COMPANIES ON THE RISE?
According to a survey back in 2016, at that time, the use by pharmaceutical companies of social media dropped! Fast forward to today, the otherwise controlled and regulated pharmaceutical industry finds itself tweeting and posting educational videos across various social media platforms. This change can be credited to the reasons given below.
Better Internet penetration and outreach: India has 692 million active Internet users as of February 2023 and an Internet penetration of 48.7%.5 This increased reach has enabled Pharma companies to engage their potential consumers like medical professionals and patients alike. It has also allowed the general public to familiarize themselves with the various pharmaceutical companies.
Promotion and increased use of various healthcare portals: The government has initiated digitalization of the healthcare sector. E-consultations on the e-sanjeevani portal have become popular. The national health portal is an all-in-one place to access authentic information related to various trends, information, and insurance schemes related to healthcare. These healthcare portals help both the pharma companies and the potential consumers to interact with each other and increase their productivity. They also save the cost required in offline transactions.
RESTRICTIONS ON PHARMACEUTICAL COMPANIES
The Pharmaceutical Industry is highly regulated. Various areas of operations are scrutinized and monitored. They include but are not limited to sales and marketing, data privacy of patients, healthcare information of customers, drug quality reports, etc. Various hefty regulations are in place to regulate the Industry. They are not exhaustive:
The Information Technology Act, 2000
Sensitive Personal Data or Information Rules, (SDPI) 2011
The Drug and Cosmetics Act, (DCA) 1940
The Drug and Cosmetics Rule, (DCR) 1945
The Drug and Magic Remedies Act, (DMRA) 1954
The Personal Data Protection Act, 2023
There is no central legislation to monitor digital health in India. All these legislations work harmoniously for the public interest. The manufacture, distribution, and sale of drugs in India is regulated by the DCA and the DCR. All the e-pharmacies are under an obligation to comply with the DCA and DCR guidelines.
The DMRA is in place to check misleading advertisements that claim to cure miscarriages, facilitate conception, and check menstrual disorders through remedies possessing magical powers. The Personal Data Protection Act, of 2023 defines health data as “sensitive personal data” and calls for stringent steps for its protection.
Back in 2014, the Ministry of Chemicals and Fertilizers rolled out the Uniform Code of Pharmaceuticals Marketing Practices (UCPMP). According to the guidelines, any information about the drugs has to be accurate, balanced, and fair and must not mislead the consumers directly or impliedly. Adverse reactions, warnings, and precautions must all be highlighted. The names and photographs of medical professionals must not be used in promotional material.
INTELLECTUAL PROPERTY-RELATED CHALLENGES FACED BY PHARMA COMPANIES IN SOCIAL MEDIA MARKETING
Intellectual Property Rights function in two aspects in the Pharmaceutical Industry. First is the pricing of drugs which is related to patents specifically. Patents aim to provide a monopoly over drug production, gaining an edge over the competitors and influencing the accessibility and pricing of the drug. The visible debate around IPR in the Pharmaceutical industries is mainly about finding a balance between rewarding the Intellectual Property owners and securing the larger general interest of society. The second aspect is the incentives provided by the Intellectual Properties to encourage R&D in the sector to produce and develop new drugs.
Data Inconsistency: The pharmaceutical industry is mainly data-driven. The number of consumers affected at any given point in time is an essential data point that is of importance to the companies. For research purposes, the number of consumers is difficult to ascertain as in many countries there exists insurance schemes and government policies which influence drug consumption. Medical professionals and pharmacists influence the amount of dosage and the quantity of drugs taken by any consumer.
Drug Pricing: Another challenge to focus on is the pricing of drugs in lower and middle-income countries. Efforts should be made to collect accurate and extensive data on intra-country variation in drug pricing, and variation of drug pricing through various distribution channels like public healthcare centres, and private retail shops. Factors like regulations and legal provisions affecting the pricing of drugs should also be assessed.
Different IPR regimes worldwide: IPR does not operate in isolation. They influence and are influenced by national laws, regulatory provisions, antitrust and competition laws, and various bilateral and multilateral treaties.
Patents being the most visible Intellectual property in this sector, are mostly studied in isolation from other IPs like copyrights, trademarks, and trade secrets. Copyrights protect research publications, breakthrough discoveries written in paper form, databases, and any form of data. Trademarks protect the brands. Trade secrets, sensitive data, and R&D collaborations are secured through contracts, non-disclosure agreements, and license agreements.
Worldwide there is a variation in the term and the subject matter of patent protection. In some countries, both product and process patents have been historically protected. The level of “non-obviousness” and “inventive step” is also not uniform.
A broad list of stakeholders (government and academic medical researchers, health care providers, branded and generic pharmaceutical company executives in R&D/marketing/public affairs/legal, import/export companies, wholesalers and retailers of pharmaceutical products, leading law firms) and their perceptions about the IPR regimes and its strength would help make better IPR policy decisions.8
Location for R&D: Many factors such as favourable tax regime, proximity and connectivity with research centres, presence of local publications, ease of filing patents, and ease of clinical trials affect the location of R&D for pharmaceutical companies. The strength of IP protection in a locality is a primary factor that cannot be compromised with.
Weak Patent protection indirectly indicates weak legal protection in case of theft of other intellectual properties like trade secrets, business know-how, and goodwill. Pharmaceutical companies without being assured of patent and other IP protection may always be in danger of their exclusive information, on which they have exclusive proprietorship being “leaked” to local competitors.
CONCLUSION
The Pharmaceutical industry is highly data-driven and sensitive to data. It is controlled by various regulations and legal provisions. The interplay of such policy requirements with Intellectual Property rights and the influence that they have on the IPRs is a thing to be monitored. It is to be seen how various IPR regimes influence drug pricing, accessibility, and R&D. This monitoring is more necessary than ever to secure the business and promotion of the Pharma Companies.
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