The Study Of The Legal Regulations On The False Drugs Advertisement

Pharmacy company and Drugs management company taking advertisement as a way of selling their products is understandable, but if the Pharmacy company and Drugs management company pursuit enterprises' profit with false drugs advertisement, the result, on one hand, will inevitably undermines the competitive order of the pharmaceutical market, on the other hand ,will damages the health of consumers. Therefore, for our government, it is urgent to solve the problem of issuing false drugs advertisement. The author thinks that we must perfect both in legislation and in law enforcement for the regulation of drugs advertisement. The thesis is divided into four parts, discussing the definition of false advertisement is in the first part. In this part, taking into account that there is no legal definition of false advertisement in China, the author puts forward his legal definition of false advertisement on the basis of Chinese scholars' views about false advertisement and the definition of false advertisement which the United States Federal Trade Commission makes. The second part is on the basis of the legal definition of false advertisement, the author proceeds to put forward the legal definition of false drugs advertisement. The third part focuses on the necessity for the regulation of drugs advertisement. The author demonstrates with Information Asymmetry theory that the government's regulation to the drugs advertisement is one of the powerful means that solves the information asymmetry in the course of consumption of drug. The forth part is the core of this thesis, on the regulation of drugs advertisement, the author points out that there are some defects in legislation and law enforcement in China, later, the author puts forward his opinions. Legislation: The author points out that there are seven defects in the regulation of drugs advertisement. First, the administrative regulation system on the drugs advertisement, the status of multiple regulations on the drugs advertisement inevitably gives birth to the vacuum of supervision on drugs advertisement. On the premise of prior approval to drugs advertisement, the author thinks that prescription drugs advertisement and OTC (over the counter) advertisement should be supervised by different departments. Under this kind of supervision system, the prior approval to drugs advertisement, the regular supervision, and the punishment will be exercised by one department. Second, the problem of illegal cost which man issuing false drugs advertisement takes on. From the legal liability of man issuing false drugs advertisement, we can see that there are two main problems, one is small cost of issuing false drugs advertisement, the other is the defect of legislation, regardless of administrative liability, civil liability or criminal liability. To market rational body, the author thinks that increasing illegal cost and perfecting legislation is one of the good means to solve the problem of issuing false drugs advertisement. Third, it is the system of advertisement inspector. At present, advertisement inspectors are subjected to their companies in China. The author thinks, if the advertisement inspectors want to play an important role in regulating false drugs advertisement, they must be incorporated into administration. Fourth, it is the system of group litigation. Because of the defects of Chinese civil procedure law in group litigation, as a result that most of the victims are reluctant to bring compensation procedure. On the basis of the Chinese group litigation, we learn useful experiences from the United States' group litigation, the author believes that we can improve the enthusiasm of victims which consume the false drugs. Fifth, it is the problem of legal status of CAA (China Advertising Association). Since "Advertisement Law" does not stipulate CAA's legal status, resulting that CAA can't play an important role in advertisement autonomy in legal title. The author thinks that the "Advertisement Law" should be amended through making it clear that CAA has authoritative representation to the false drugs advertisement in advertisement autonomy. Sixth, it is the system of complaint against false drugs advertisement. Complaint channels are disunity, there is no strong incentive mechanism for people's complaints, and the follow-up procedures are opaque when the complaints are accepted. Three problems above are major issues, which the author proposes some countermeasures to solve. Seven, it's about credit management of enterprises which issue the drugs advertisement. In this section, the author mainly analysis "the Enterprises Issuing Advertisement about Medicine, Medical apparatus and Health Food Credit Management Measures" which is implemented on January 1, 2008. The author thinks that there are some questions in the measures which should be amended through classifying the trustworthy enterprises further, strengthening the collection of credit information, making different punishment between serious dishonesty enterprises and dishonesty enterprises. Law enforcement: The author mainly discusses from three aspects. First, it's the problem about classification of false drugs advertisement. Traditional classification of false drugs advertisement leads to two problems, one is that gives rise to dispute between supervisors, the other is that can't distinguish the severity of false drugs advertisement from the classification. So the author proposes dichotomy method, namely, illegality and serious illegality. Second, it's the problem about regulation in the course of administrative enforcement. No matter how perfect the legislation is, if the administrators have illegal activities, the phenomenon of false drugs advertisement also can't be solved. In this regard, the author believes that the strengthening from state supervision, internal supervision, and society supervision is one good way to solve the problem. Third, it's the problem about the engagement mechanism between the administrative law enforcement and criminal law enforcement. Issuing false drugs advertisement seriously may offend the crime of false advertisement, the crime of selling false drugs, the crime of forging state documents, seals, etc. However, the phenomenon that criminal liability is instead of penalty is serious in reality. In response to this phenomenon, the author proposes that, first of all, promotes the legislative level of the engagement mechanism between the administrative law enforcement and criminal law enforcement, secondly, strengthens liability that administrators don't send the people who offend the criminal law to the police station, third, improves the administrators' ability of law enforcement, finally, constructs net platform which the information of administrative law enforcement and the information of criminal law enforcement can be mutually shared.