[Contribution] Legal issues regarding non-face-to-face drug ordering and courier delivery

Recently, there has been a lot of interest in warehouse-type pharmacies. The existing pharmaceutical industry is opposing warehouse-type pharmacies that promote distribution efficiency and cost savings, fearing misuse of medicines and ecosystem collapse. If these warehouse-type pharmacies attempt non-face-to-face sales, the impact is expected to grow even greater.

At this time, the Supreme Court ruling on non-face-to-face sales of pharmaceuticals was announced on the 12th of last month (Supreme Court ruling 2023Do9880). The ruling is a case dealing with a violation of the Pharmaceutical Affairs Act for taking a reorder over the phone for a diet herbal medicine that was sold after conducting a face-to-face interview and delivering it by courier.

In this case, the appellate court judged that the above act did not violate Article 50, Paragraph 1 of the Pharmaceutical Affairs Act for the following reasons, saying, 'The main part of the series of activities that make up the sale of medicines, such as ordering, manufacturing, delivery, and medication guidance, can be viewed in the same way as if they were carried out within a pharmacy.' (Seoul Eastern District Court 2021No1678 ruling).

① After conducting a face-to-face interview and selling the herbal medicine for the first time, the person said over the phone that he or she wanted to take more of the herbal medicine and sold the herbal medicine again through courier service.

② The contents, composition, and price of the first-sold herbal medicine and the re-sold herbal medicine are all the same.

③ Since the purchaser of herbal medicine did not complain of any unusual symptoms through a phone call, the seller does not believe there is a need for additional face-to-face questioning.

However, the Supreme Court stated that Article 50, Paragraph 1 of the Pharmaceutical Affairs Act stipulates that 'pharmacy openers and drug dealers shall not sell drugs in places other than their pharmacies or stores,' and the reason for strictly restricting the places where drugs are sold is 'the purpose is not only to prevent misuse and abuse of drugs through faithful medication guidance, etc., but also to block the possibility of deterioration and contamination of drugs during the storage and distribution process, and to clarify responsibility in the event of a weakening accident.'

Next, the ruling was made to the effect that 'the series of actions of checking the physical changes after taking the herbal medicine in a face-to-face situation with the orderer, then receiving the order of herbal medicine suitable for the orderer's physical condition, dispensing it, and faithfully providing medication instructions were not properly carried out, and the seller did not directly deliver the herbal medicine to the orderer without any intermediate process. Therefore, it cannot be said that all or major parts of the series of activities that constitute the sale of medicines, such as ordering, delivery, and medication guidance, were carried out within the pharmacy.'

The above Supreme Court decision shows that 'online ordering and courier delivery', which is considered the next business model for warehouse pharmacies, is likely to be judged as a violation of Article 50, Paragraph 1 (restrictions on sales location) of the Pharmaceutical Affairs Act at this time.

However, considering that non-face-to-face medical treatment and drug prescription systems are being activated in developed countries such as the United States, Japan, and the United Kingdom, and that in Korea, special regulatory provisions for verification purposes have been designated for vending machines that allow users to purchase over-the-counter medicines through a remote control system after receiving consultation and medication guidance through a video call with a pharmacist through a monitor installed in front of a pharmacy in June 2022, it seems likely that related regulations and precedents will change in Korea as well.

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[Contribution] Legal issues regarding non-face-to-face drug ordering and courier delivery (link)