The South Korean Supreme Court has upheld suspended fines of 3 million won each against telehealth app DoctorNow and its former representative for illegally advertising prescription drugs. The court ruled that a “BEST Medications” service linked to online consultations constituted prohibited promotion, regardless of profit motive.
The court affirmed that the law prohibiting the advertising of prescription drugs under the Pharmacist Act does not require a commercial intent. The focus is on the act of widely disseminating information about prescription medications to the general public.
The “BEST Medications” Service and Its Legal Challenges
In May and June 2022, the DoctorNow app operated a feature called “BEST Medications.” This service listed prescription drugs categorized by condition, such as skin treatments, hair loss, diet, artificial tears, and allergies. Users could browse these lists, read reviews of the medications’ effects and efficacy, and select a specific drug to request a prescription. The process involved adding a chosen medication to a virtual cart and then undergoing a non-face-to-face consultation with a physician who would, in turn, issue a prescription.
Prosecutors indicted the company and its former representative, surnamed Jang, arguing the service was a clear violation of Article 68(6)(1) of the Pharmacist Act, which strictly bans the advertising of prescription drugs. The lower courts agreed. They noted that while the “BEST” label was based on click-count rankings, it could be misinterpreted as an endorsement of the “best” medication. The sheer volume of prescriptions generated from the medications introduced through the feature was also cited as evidence that it was not merely passive information provision but was linked to the “request the medication you want” service, allowing patients to select and receive prescriptions for drugs directly, before a physician’s judgment.
A Ruling on “Advertising” Without Profit Motive
DoctorNow’s defense centered on the claim that its service was not for profit and therefore could not be considered “advertising.” The appellate court and, definitively, the Supreme Court rejected this argument.
The Supreme Court’s ruling was explicit. It defined “advertising” under the law as “an act carried out for the purpose of widely informing an unspecified number of people about prescription drugs.” The court emphasized that once such an act has taken place, “it does not require that there be a motive or purpose of profit.” By creating a system that allowed users to select a drug and then request a prescription for that specific drug, the court found DoctorNow had gone beyond simple information provision.
Court Bans Drug Selection Apps
- Prescription drug ads are illegal. A South Korean court ruled that even information-style presentation can be illegal advertising if it helps patients choose and request a specific prescription drug.
- Apps must be careful. Telehealth services that let users browse and select medicines risk being seen as advertising, which is against the law, even without a profit motive.
- The ruling found that allowing patients to pre-select medications before a physician’s judgment went beyond information provision.
