The Cost of a Post: Prescription Medicines in the Age of Social Media

The rapid expansion of social media platforms has transformed the way information reaches consumers. Pharmaceutical products have not escaped this phenomenon. Today, patients are routinely exposed to content relating to medicines through Instagram, TikTok, Facebook, YouTube, and other digital platforms. Such content may appear in the form of testimonials, personal experiences, product reviews, educational posts, or endorsements by content creators. Yet, when prescription medicines are involved, the legal implications become significantly more complex.

The growing presence of pharmaceutical-related content in digital environments raises concerns that extend beyond traditional advertising regulation. Information disseminated through social media may encourage self-medication, oversimplify medical information, omit relevant risks and contraindications, or promote expectations regarding a product’s effectiveness that are unsupported by scientific evidence. These concerns explain why many jurisdictions, including Peru, impose strict limitations on the promotion of prescription medicines.

Peruvian legislation draws a clear distinction between medicines that may be sold over the counter and those that require a medical prescription. While the former may generally be advertised to the public, prescription medicines are subject to a much more restrictive framework. The underlying rationale is straightforward: decisions concerning the use of prescription medicines should be guided by qualified healthcare professionals rather than by advertising messages directed at consumers.

This restrictive approach is reinforced by the Health Technical Standard establishing the Ethical Criteria for the Promotion and Advertising of Pharmaceutical Products, Medical Devices and Health Products, which expressly prohibits internet advertising of medicines that may only be dispensed with a medical prescription. As a result, open websites, social media profiles, and other publicly accessible digital channels generally constitute inappropriate platforms for the promotion of such products.

The issue, however, is not always clear-cut. The mere presence of information about a medicine on a website or digital platform does not automatically mean that advertising is taking place. A distinction must be drawn between promotional communications and purely informational content. Whether a particular communication qualifies as advertising depends on its overall context, design, language, purpose, and capacity to persuade consumers.

This distinction has been recognized in Peruvian administrative practice. Authorities have accepted that certain online publications may constitute neutral information when their purpose is limited to informing consumers about the availability, characteristics, price, composition, precautions, or conditions of use of a product, without attempting to influence purchasing decisions. In those circumstances, the communication may fall outside the scope of advertising regulation. Conversely, where the content seeks to highlight benefits, generate consumer interest, or stimulate demand, the likelihood of being characterized as advertising increases considerably.

The growing internationalization of digital communications introduces an additional layer of complexity. Pharmaceutical companies frequently disseminate content from jurisdictions where certain advertising practices may be permitted. The global nature of the internet means that those communications can often be accessed from Peru, raising questions regarding the territorial reach of Peruvian law.

The fact that advertising originates outside Peru does not necessarily prevent Peruvian authorities from asserting jurisdiction. Under the Law on the Repression of Unfair Competition (hereinafter “LRCD”), the relevant consideration is not merely where the communication originated but whether it produces, or is capable of producing, effects within the Peruvian market. Consequently, advertising disseminated abroad may still be subject to Peruvian law where it targets, directly or indirectly, consumers located in Peru. Factors such as the use of Spanish-language content directed at Peru, references to local distribution channels, pricing information relevant to the Peruvian market, or interactions with Peruvian consumers may become relevant when assessing whether sufficient local effects exist.

The absence of a domicile in Peru does not, in itself, preclude the substantive application of the LRCD where the conduct produces or may produce effects within the national territory. Nevertheless, a finding of liability requires identification of the party that acted as the advertiser, proof of its involvement in disseminating commercial communication, and observance of the applicable guarantees regarding service of process and the right of defense. 

In proceedings concerning an act of unfair competition committed through advertising, advertiser status is one of the elements required for the infringement to be established. To characterize a party as an advertiser, it must be verified that: (i) the company participated in the advertising dissemination process, that is, the process of making the advertising public; and (ii) the advertising pursued a competitive purpose, namely, informing the public about its products or encouraging transactions that serve its commercial interests. 

Accordingly, a foreign company is not liable merely because it manufactures the product. It may be held liable where the evidence establishes that it acted as the advertiser, meaning that it participated, directly or through third parties acting on its instructions, in disseminating advertising intended to promote transactions for its benefit in the Peruvian market. 

The rise of influencers has further blurred the boundaries between advertising and ordinary online content. Unlike traditional advertising channels, influencer communications are frequently perceived as personal recommendations rather than commercial messages. This characteristic may increase their persuasive effect and, consequently, the regulatory concerns associated with their use.

Peruvian competition authorities have recognized that influencers may function as advertising media in their own right. Their ability to influence consumer behavior derives not only from audience size but also from the credibility and trust placed in them by their followers. As a result, influencer marketing has become a significant area of regulatory scrutiny.

Influencer advertising has been defined as practices undertaken by an influencer to promote, directly or indirectly, an advertiser’s brands, products, or services, provided that such practices arise because of payment or any other form of consideration. 

Not every reference to a brand or product by an influencer constitutes advertising. A key factor is the existence of a material connection between the influencer and the advertiser. Where the influencer receives monetary compensation, free products, sponsorship opportunities, discounts, or other benefits in exchange for promoting a product, the publication is more likely to be regarded as advertising. Importantly, regulators will generally look beyond the formal structure adopted by the parties and examine the substance of their relationship. Direct payment is not necessarily required. Prior coordination, content guidelines, recurring commercial relationships, affiliate arrangements, or other forms of consideration may all support a finding that advertising activity exists.

This analysis becomes particularly significant where prescription medicines are involved. Even if the commercial nature of the communication is transparently disclosed through hashtags, sponsorship notices, or similar mechanisms, the dissemination of promotional content relating to prescription medicines through channels accessible to the general public may still infringe applicable health regulations. Transparency may help satisfy the Principle of Authenticity, but it does not eliminate a potential violation of the rules limiting the advertising of prescription medicines to healthcare professionals.

The increasing reliance on digital marketing strategies requires pharmaceutical companies to reassess traditional compliance frameworks. Communications that may appear innocuous from a marketing perspective can generate significant regulatory exposure when disseminated through public digital channels. This is especially true in an environment where content can be rapidly shared, replicated, and accessed across jurisdictions.

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