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  • Interpretation
  • No.414
  • Date
  • 1996/11/08
  • Issue
    • (1) Does freedom of speech guaranteed by Article 11 of the Constitution include commercial speeches made with the intent to obtain profits through sales of goods, services and concepts?
    • (2) Is censorship by the provincial (municipal) health authority prior to the broadcasting of a drug commercial constitutional?
  • Holding
    •        Drug commercials are economic activities engaged in by pharmaceutical manufacturers for the purpose of obtaining profits. These kinds of activities involve protection of property rights and possess the characteristics of a commercial speech. Because drug commercials are closely related to the health of nationals, they thus should be strictly regulated by law to protect the public interest. In order to ascertain the truthfulness of the drug commercial and to maintain the health of nationals, Article 66, Paragraph 1, of the Pharmaceutical Affairs Act provides that before broadcasting the drug commercial, the pharmaceutical manufacturer should submit all writings, graphics, or words and phrases to the provincial (municipal) health authority for approval. This prior censorship requirement is necessary to protect the public interest and is consistent with Articles 11 and 15 of the Constitution. In addition, Article 47, Subparagraph 2, of Enforcement Rules of the Pharmaceutical Affairs Act provides that by allowing the exchange of prizes with the drug containers or by granting awards, the content of drug commercials is likely to encourage consumers to use drugs abusively, the provincial (municipal) health authority thus should delete or disapprove of such content according to the authorization granted under Article 105 of the Pharmaceutical Affairs Act. Furthermore, Article 47, Subparagraph 2, of the Enforcement Rules of the Pharmaceutical Affairs Act is promulgated to supplement the explicit requirements for the relevant matters governed by Article 66 of the Pharmaceutical Affairs Act, and complies with the legislative intent without exceeding the scope of authorization granted under Article 66 of the Pharmaceutical Affairs Act and is consistent with the Constitution.
  • Reasoning
    •        Through the mass media, drug commercials promote the beneficial effects of medical treatment for the purpose of soliciting sales. These drug commercials are economic activities engaged in by pharmaceutical manufacturers to obtain profits. By possessing the characteristics of a commercial speech, these drug advertisements should be protected under Articles 15 and 11 of the Constitution where freedom of speech is guaranteed. Freedom of speech is to protect the free flow of opinions so that people can acquire information and express themselves. The categories of speech protected under Articles 15 and 11 of the Constitution include political speech, academic speech, and commercial speech. The scope of protection and the level of restriction are different for the abovementioned three categories of speeches according to their characteristics. Being irrelevant to the formation of public opinion, fact-finding, or the expression of beliefs, commercial speech does not enjoy the high degree of protection afforded to the other categories of speeches. Because the commercial speech of drug advertisements is closely related to the health of nationals, it thus should be strictly regulated by law to protect the public interest.     
      
    •        Article 66 of the Pharmaceutical Affairs Act provides that before broadcasting a drug commercial, the pharmaceutical manufacturer should submit all writings, graphics, or words and phrases to the provincial (municipal) health authority for approval and should send the permit to the media. The media is prohibited from broadcasting a drug commercial without approval from the provincial (municipal) health authority. The purpose of this prior censorship is to ascertain the truthfulness of the drug commercial and to protect the health of nationals. The provincial (municipal) health authority has the exclusive right to impose such requirements so that it can, in accordance with routine procedure, objectively review the effects of the drug, the content of the drug commercial, and the impact on the market. This prior censorship is necessary to protect the health of nationals and is consistent with the freedom of speech guaranteed by Article 11 of the Constitution and existence rights, right of work and property rights guaranteed by Article 15 of the Constitution. In addition, Article 47, Subparagraph 2, of the Enforcement Rules of the Pharmaceutical Affairs Act provides that by allowing the exchange of prizes with the drug containers or granting other awards, the content of drug commercials is likely to encourage consumers to use drugs abusively. The provincial (municipal) health authority thus should delete or disapprove of such content pursuant to the authorization granted under Article 105 of the Pharmaceutical Affairs Act. Furthermore, Article 47, Subparagraph 2, of Enforcement Rules of the Pharmaceutical Affairs Act is promulgated to supplement the explicit requirements for the relevant matters governed by Article 66 of the Pharmaceutical Affairs Act, and complies with the legislative intent without exceeding the scope of authorization granted under Article 66 of the Pharmaceutical Affairs Act. The regulation neither burdens any liberties of the people with additional restrictions not imposed by law nor is contrary to the Constitution. Because the purpose of advertising is to provide information and the society may have a strong interest in the free flow of commercial information, therefore, as to the items, content and scope of drug commercials submitted for approval, the provincial (municipal) health authority should consider the need for prior censorship and modify the requirements accordingly.  
      
    • *Translated by Li-Chih Lin, Esq., J.D.
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