Introduction

The Law on

Protection of Consumers No. 6502 (the "Law") is published in the Official

Gazette on November 28, 2013 and entered into force on May 28, 2014. Article 1

of the Law specifies the purpose of the Law as "to take measures that protect the health, safety and the economic

interests of the consumer ... in order to inform and educate the consumers in

accordance with public interest". Regulation and supervision of

advertisements are considered as necessary tools to protect consumers. Therefore

the Law includes detailed provisions on advertisements, which are supported by

the secondary legislation, i.e. the Regulation on Commercial Advertisement and

Unfair Commercial Practices (the "Regulation").

Under Turkish

law certain sectors, such as health sector, are subject to additional restrictions

on advertising due to their unique nature and purpose. As a general rule,

health-related commercial advertisements are prohibited under Turkish law through

various pieces of legislation. Administrative sanctions are set to be imposed by

the Advertisement Board on the advertisers, advertising agencies and

establishments broadcasting these advertisements in cases where the

health-related commercial advertisements are considered to be contrary these

restrictions. Since the Advertisement Board's decisions are deemed as

administrative actions under Turkish administrative law, these decisions are

subject to judicial review before administrative courts. The Council of State

rendered many decisions in cases where sanctions on health-related commercial

advertisements are challenged and requested to be annulled, and these decisions

provide further guidance on how the restrictions must be interpreted and

viewed, specifically what makes a health-related commercial advertisement

illegal under Turkish law.

Commercial Advertisement under Turkish

Law

Article 61 of

the Law defines "commercial advertisement"

as "announcements that are marketing

communications made through written, visual, audio and similar methods in any

medium by the advertisers, in order to provide sale or lease of a good or

service, inform or convince target audience in connection with a trade, work,

craft or profession". Scholars argue that there are different definitive elements

in commercial advertisements, such as existence of promotion, commercial aim, intention

to promote, purpose of increasing popularity of a product or service, use of a

medium, and addressing the public, i.e. more than one individual.

Commercial

advertisements are subject to regulations as they are considered to be inextricably

linked to protection of consumers. Article 61 of the Law provides the main

rules regulating commercial advertisements, which are elaborated and supported

by the provisions of the Regulation. Article 77(12) of the Law specifies the

administrative sanctions that may be imposed on advertisers, advertising

agencies and establishments broadcasting the advertisements by the

Advertisement Board in case of non-compliance to the regulations.

Prohibited and Restricted Advertisements

in the Context of Health Sector

Article 61(2) of

the Law provides that commercial advertisements must be in conformity with the

principles adopted by the Advertisement Board, public morality, public order

and personal rights; they also must be honest and true. Commercial

advertisements that deceive or mislead the consumer, or abuse the consumer's

lack of experience or knowledge, threatening the life of the consumer and

safety of consumer's property, encouraging the acts of violence or inciting to

commit crime, endangering public health, abusing the sick, elderly, children or

disabled people are prohibited by Article 61(3) of the Law. In addition to

these general rules, the Regulation provides more specific rules that need to

be observed.

Article 26(1) of

the Regulation titled "goods and services

subject to special rules on advertisement" provides that "advertisements of goods and services that which

are subject to special rules on advertisement, such as ... health services ...,

must be in conformity with all the other rules on advertisement and promotion

provided in the relevant legislation." Therefore, while examining the

health-related commercial advertisements, specific legislations must be taken

into consideration.

First of all,

medical institutions and medical staff are not allowed to be involved in

health-related commercial advertisements in order to prevent commercialization

of human health and to observe public interest (common good) during the

provision of healthcare services. Article 24 of the Law on Execution of

Medicine and Medical Sciences No. 1219 provides an exception to the prohibition

on medical staff being involved in commercial advertisement. This article

stipulates that medical doctors are allowed to make announcements regarding the

location of their clinic, working hours and their specialization; but they

still cannot make advertisements regarding any other issue.

Article 60(2) of

the Regulation on Private Hospitals allows private hospitals to make promotions

and inform public only with the purpose of preservation and enhancement of

health. That being said, Article 60(1) prohibits actions and promotions made by

private hospitals that are considered to be contrary to medical deontology and

ethical rules, which could deceive or mislead individuals or aim to increase

demand of individuals or constitute unfair competition vis a vis other private hospitals. In the same vein, Article 29(1)

of the Regulation on Private Medical Centers for Ambulatory Diagnosis and

Treatment explicitly provides that "medical

institutions cannot be involved in advertisement". The Ministry of Health's

Circular on Private Medical Institutions' Informatory and Promotional

Activities No. 2013/15 provides that "Explicit

and implicit advertisements going beyond being informative and promotional

shall be prohibited."

Supervision of Commercial Advertisements

and Sanctions in the Context of Health Sector

The

Advertisement Board has the authority to supervise commercial advertisements

and to impose sanctions of suspension, correction, monetary fine, or precautionary

suspension up to three (3) months in case of non-compliance pursuant to Article

63 of the Law. There are numerous decisions rendered by the Advertisement Board

wherein the Board imposed sanctions on the commercial advertisements made by

medical institutions and/or medical staff that (i) exceed the informatory

purposes, (ii) render the activities of the medical institutions and/or medical

staff as commercial activities, (iii) aim to create demand, and (iv) constitute

unfair competition vis a vis other

medical institutions and/or medical staff. These are the general restrictions

that a health-related advertisement is bound by.

Precedents concerning Advertisements in

Health Sector

Under Turkish

law, the Advertisement Board's decisions are deemed as administrative actions

and it is possible to initiate an annulment lawsuit against the Advertisement

Board's decisions before the administrative courts. Various decisions of the

Administrative Board related to health-related commercial advertisements were

challenged through annulment lawsuits and the Council of State, the highest

administrative court in Turkey, rendered many decisions in these cases, which

provide further guidance on the restrictive rules on health-related commercial

advertisements. Below are just a few of these decisions that could be an

example to what makes a health-related advertisement being contrary to the

allowed framework of such advertisements.

15th

Administrative Chamber of the Council of State, with its decision dated

December 15, 2015 and numbered 2015/8726 E., 2015/8764 K., confirmed an

administrative court's decision wherein it was concluded that mentioning the

contact details of the medical doctors working at a hospital in an

advertisement published in a newspaper makes the hospital's activities seem

like commercial activities.

15th

Administrative Chamber of the Council of State, in its decision dated October

1, 2015 and numbered 2015/4050 E., 2015/5574 K., stated that advertisement

published in a magazine containing statements such as "... the new technology is available at [the name of the hospital]"

and the "before and after" photos of the patients aims to create demand for the

relevant hospital, which renders the relevant hospital's activities as

commercial activities and constitutes unfair competition vis a vis other medical institutions.

15th

Administrative Chamber of the Council of State in its decision dated September

18, 2015 and numbered 2015/6917 E., 2015/5437 K. ruled that provision of detailed

description of the treatments provided at a dental clinic by mentioning that

all those treatments are successfully applied by the dentists working at that

clinic and presentation of photos of the clinic was again considered as aiming

to create demand, rendering the clinic's activities as commercial activities,

and constituting unfair competition.

15th

Administrative Chamber of the Council of State in its decision dated December

19, 2011 and numbered 2011/11279 E., 2011/5725 K. ruled that an advertisement that

is published in a newspaper regarding a discount in vitro fertilization procedure

limited with 500 families and gives contact details of the relevant hospital is

contrary to law, as the advertisement aims to increase the demand for the

relevant hospital and commercialize its activities.

15th

Administrative Chamber of the Council of State in its decision dated November

21, 2011 and numbered 2011/1472 E., 2011/4167 K. ruled that the articles published

in a magazine, which states that an hospital receives patients transferred from

another hospital abroad and gives out contact details and opinions of the

medical doctors working at that hospital abroad, is a commercial advertisement

aiming to direct more patients to the hospital and medical doctors receiving

transferred patients.

15th

Administrative Chamber of the Council of State in its decisions dated December

21, 2011 and numbered 2011/12449 E., 2011/5843 K. and dated November 28, 2011

and numbered 2011/12437 E., 2011/4435 K. ruled that an advertisement on

prostate treatment titled "Stay always

young, just like me", which also has the internet address of the relevant

hospital, creates commercial appearance for the relevant hospital and aims to increase

the demand for the relevant hospital.

9th

Administrative Chamber of Ankara Regional Administrative Court in its very

recent decision dated February 9, 2017 and numbered 2017/55 E., 2017/60 K.

ruled that an advertisement suggesting that a public dental clinic to be a

better clinic due to its high quality treatment facilities compared to private

dental clinics directly incentivizes the patients to choose that public dental

clinic, which is contrary to law in terms of restrictions in health-related

advertisements.

In light of all

these decisions, it is possible to say that health-related advertisements are

considered to be illegal if these advertisements promote the health institution

to attract patients, praise a medical procedure by implying that the procedure

brings a positive effect despite that specific effect being irrelevant to that

procedure, create attraction for the health institution by suggesting the

institution is highly preferred, announce discounts on a medical procedure to steer

patients into choosing the institution making that discount, suggest all the

medical procedures are completed successfully in order to create a sense of

confidence and thus patient demand. Surely these circumstances are mere

examples of what constitutes an illegal health-related advertisement and any

circumstance that exceeds the allowed framework of restrictive rules on

health-related commercial advertisements would make the advertisement illegal.

Conclusion

The Law

regulates commercial advertisement through the Regulation. Since the health

sector is subject to special restrictions on advertisement due to special place

in terms of public benefit, specific pieces of legislation become applicable

when a health-related commercial advertisement is in question. As a general

rule, health-related commercial advertisements are prohibited under Turkish law

except for those aiming to inform the individuals. The Advertisement Board

rendered many decisions in cases where health-related commercial advertisements

are found (i) exceeding the informatory purposes, (ii) rendering the activities

of the medical institutions and/or medical staff as commercial activities,

(iii) aiming to create demand, and (iv) constituting unfair competition vis a vis other medical institutions

and/or medical staff. The local administrative courts and the Council of State

have adopted the same criteria while examining the legality of a health-related

commercial advertisement by considering unique dynamics and specifics of each

case.

Authors: Gönenç Gürkaynak, Esq., Tolga Uluay and A.

Bahadır Erkan, ELIG, Attorneys-at-Law

(First

published in Mondaq on December 5, 2017)