Non-prescription drugs, legitimate online marketplace between pharmacies and customers

The questions posed by the national court concern two issues: the first is the possible qualification of the company's activity as an 'information society service'; the second is the power of Member States to prohibit the online sale of medicines to non-pharmacists.

The Court answered the first question in the affirmative: the company is an information society service that connects advertisers/sellers and their potential customers. It is, therefore, what is called a marketplace and as such does not directly engage in the business of selling online to the public.

As to the second question, the Court distinguishes between the conduct of a person who sells medicines directly, without having the status of pharmacist, and a person who merely puts pharmacists and customers in contact.

In the first case," the Court holds, "authorisation to carry out the activity of online sales falls within the exclusive competence of the Member States and, therefore, the French authorities may reserve distance selling to the public to persons with a pharmacist's qualification only. In the second case, on the other hand, that of marketplaces, the Member State does not have the power to prohibit the service for lack of pharmacist qualification.

As for the effects on the market and in the Italian legislative context, the judgment touched on some important points. The legislation on the online sale of medicines in force in Italy is drafted in implementation of European Parliament Directive 2011/62/EU and contained, in particular, in Legislative Decree 17/2014.

In our country, the online sale of prescription drugs is illegal (Article 147, paragraph 4 bis, Legislative Decree 219/2006), while the online sale of non-prescription drugs (so-called Sop and Otc) is only allowed on a pharmacy-owned site (Dgdmf circular protocol 0025654 of 10 May 2016).

The practice of dropshipping, i.e. selling a product without physically possessing it in one's own warehouse, through logistics platforms or independent distributors, is also prohibited in Italy.

It is clear that this business practice intertwines and overlaps with the sale of other health and cosmetic products and thus makes enforcement not always easy, as well as delicate in terms of protecting the health and trust of the public.

Left out of the survey offered by this pronouncement is the sore point of home delivery of medicines (home delivery), by a third party other than the pharmacist (supplier or distributor), a delivery which, however, is implicit in the practice of distance selling and which also continues to generate doubts in relation to the use of Apps and online services created on the model of home delivery.

In France, a group of pharmacists presented to the Directorate General for Enterprise of the Ministry of Economy and Finance a project for an e-commerce portal managed directly by French pharmacies to be put online in early 2025.

The portal would function exactly as a marketplace, created by pharmacists for pharmacists, which would allow online sales and home delivery of prescription drugs, without violating the limits imposed by national legislation.