Media Statement from the Independent Community Pharmacy Association of South Africa (ICPA): ICPA to have its day in the Constitutional Court – the David vs Goliath battle enters the final round
ICPA to have its day in the Constitutional Court – the David vs Goliath battle enters the final round
Interview with Newzroom Afrika: Click HERE to watch
Published in The Citizen (Courts): Click HERE to read
Following a protracted legal battle in the Western Cape High Court and the Supreme Court of Appeal between the Independent Community Pharmacy Association (“ICPA”), a non-profit company representing the interests of over 1200 independent pharmacies, and the Clicks Group, ICPA has been given a date to put its case on pharmacy ownership and patient rights before the apex Court.
The Pharmacy Act empowers the Minister of Health to prescribe who may own a pharmacy and the conditions under which such a person may own a pharmacy. Regulation 6(d) of the Ownership Regulations is to the effect that any person who owns a community pharmacy may not also own or be the holder of any direct or indirect beneficial interest in a manufacturing pharmacy. The mischief which Regulation 6(d) intends to cure is in ICPA’s view very clear: one may not simultaneously have ownership or a beneficial interest in both a community pharmacy and a manufacturing pharmacy. The obvious purpose of the regulation was to ensure that pharmacists do not have a vested interest in the medicines which they dispense or recommend.
ICPA won in the High Court but lost 4-1 in the SCA. In the dissenting judgment by Makgoka JA in the SCA, i.e. not the majority judgement, it was held that
“Another danger is that if pharmacies are permitted to create their own affiliated manufacturers whom they control, directly or indirectly, they would directly be involved in setting prices and have strong incentives to keep those prices high. There is an inherent conflict of interest when a pharmacist is employed and remunerated by an entity which forms part of a group which also owns or has an interest in a manufacturing entity. The high court further pointed out, that an entity having interests in both types of pharmacies would gain financially if the manufacturing pharmacy’s products are promoted by the pharmacists in the community pharmacies over other products. This could result in consumers not getting the best quality product at the best price. Products which are not strictly needed might be recommended and sold. The conflict of interest could also result in the manufacturing pharmacy favouring community pharmacies belonging to the same group above outside or independent pharmacies. This might affect the availability of products to customers.”
This succinctly sets out the position that ICPA advances. We say that a conflict of interest exists within the Clicks Group as Clicks owns more than 600 pharmacies and also owns a manufacturing pharmacy, Unicorn Pharmaceuticals. The Unicorn brand has many generic medicines under its label which are only available to Clicks Pharmacies. ICPA has set out in its court papers why it believes that the Clicks Pharmacies actively promote their own brands and why it says that Clicks’ pharmacists are incentivised to promote their Unicorn brand. ICPA contends in the Court case that Clicks’ pharmacists’ performance appraisals require that a certain percentage of sales are own brand sales. If so, this might put some of their pharmacists in a difficult position, either to recommend a medicine they believe is best suited to the patient or an alternative Unicorn own brand to ensure his/her performance appraisal is favourable. Another challenge is that certain medicines are not easily substitutable, such as certain heart medicines and many epileptic medicines. If a patient is stabilised on a Unicorn brand of one of these medicines, he or she is effectively restricted to using Clicks Pharmacies only as other pharmacies cannot purchase Unicorn brand of medicines.
ICPA will argue in the Constitutional Court proceedings, which are set down for 1 September 2022, that the Clicks corporate structure is in contravention of the Pharmacy Act and Regulations, and that if Clicks are allowed to continue in this manner, then they are infringing on individuals’ rights to access to health care services.
ICPA to have its day in the Constitutional Court – the David vs Goliath battle enters the final round
About ICPA
ICPA (Independent Community Pharmacy Association) is an organization which provides independent community pharmacies with a collective strength and a coherent voice that is heard by government, medical schemes, pharmaceutical suppliers and importantly, the consumer.
ICPA represents one of the largest pools of professionals in the healthcare sector with over 1 200 pharmacies, about 3 500 pharmacists and 20 000 supportive healthcare personnel spread across metropolitan, urban and rural South Africa.
The objective of ICPA is to assist and support its members in securing a sustainable and successful future as independent, owner-managed pharmacies.
In addition to this, the ICPA strives to foster an understanding of the role that independent pharmacies can (and do) play in delivering important healthcare services to the communities that they serve. All ICPA members are committed to high-quality pharmacist care and to the restoration and maintenance of the health and well-being of the consumer – the lifeblood of all pharmacies.
