Any transfers of value to healthcare professionals carried out from 1 January 2017 shall be published individually by the laboratories adhered to Farmaindustria without having to request the professional’s prior consent.
On 22 April 2016, the Spanish Data Protection Agency (the “SDPA“) published a report issued by its legal department as result of a query made by the Spanish Association of the Pharmaceutical Industry (“Farmaindustria“). The query set out if a change in the Pharmaceutical Industry’s Good Practice Code was compliant with data protection regulations. This change, affecting pharmaceutical laboratories adhered to the association, was related to the exemption from their obligation to request the consent of healthcare professionals in order to publish any transfers of value made in their favour.
The SDPA confirmed – although with nuances – the reasoning provided by Farmaindustria to consider that the exemption to the general rule, which required said consent, was applicable. The reasoning is based on the fact that patients, the general public and the association have a legitimate interest in being informed about any transfers of value, and that such legitimate interest prevails over the fundamental right of data protection.
In particular, the individualized publication of transfers of value made in favour of healthcare professionals beats the judgment of suitability and necessity because its purpose is no other than guaranteeing and showing the independence and integrity of a healthcare professional in matters related to the prescription, provision and management of medicines and, therefore, proving that pharmaceutical laboratories have no influence or power over said professionals. In fact, the Medicines Law sets out the principles of guarantee and independence of healthcare professionals and imposes upon them the obligation of publishing – although it does not specify the procedures to be followed – any awards, grants, contributions or financial aid that may be offered to a healthcare professional to attend meetings, conferences, research expeditions and other similar scientific activities.
The proportionality principle regarding the legitimate interest in individually publishing each transfer of value is achieved when the obligation to inform, as set out in the data protection regulations, is fulfilled, as well as by recognizing that healthcare professionals may exercise their legal rights, allowing them, in particular, to oppose to their data being processed. Also, the proportionality of the measure is reinforced because article 18.3 of the Good Practices Code sets out that those transfers of value shall be published cumulatively and grouped by category (that is, collaboration in scientific and professional meetings, as well as provision of services) without having to specify each transfer.
Notwithstanding the above, the SDPA considers that even if the legitimate interest in individually publishing the transfers of value prevails, additional measures should be taken in order to minimize, as much as possible, the processing of healthcare professional’s personal data. Therefore, the SDPA promotes the application of protocols that would prevent search engines from indexing information that has been published, as well as including in the laboratory’s webpage a disclaimer specifying that the purpose of the publication is no other than complying with transparency obligations, and that any additional processing of a healthcare professional’s data is strictly forbidden.
After receiving the approval of the SDPA, Farmaindustria held an Ordinary General Meeting on 26 May 2016 to approve the changes in the Good Practices Code, as explained above. Such change is a significant milestone for the pharmaceutical industry because the publication of any transfers of value, carried out from 1 January 2017, shall be published individually, without needing the prior consent of the healthcare professional, as had been done previously.
However, it should be highlighted that the report issued by the legal department of the SDPA only reviews Farmanindustria’s query, without analysing if non-adhered laboratories may be entitled to publish the transfers of value individually without the prior consent of a healthcare professional. Therefore, the absence of a statement in this respect generates certain legal insecurity for these non-adhered laboratories.