Legal view: The possible next steps for Amazon Pharmacy
The form-filling for Amazon to enter the online pharmacy market is not insurmountable, say legal experts Noel Wardle and Peter Byrd
In an interesting and perhaps concerning development for the community pharmacy sector, Amazon applied for trademarks in the UK and EU for “Amazon Pharmacy” in January.
Having a trademark gives the owner a monopoly right to prevent third parties from using that name, in respect of the products and services that the former protects. While you don’t need to have a trademark to operate, it is a very powerful tool in a company’s brand protection arsenal.
In the pharmaceutical industry in particular, trademarks are extremely important. Trademarks are the most effective tool for stopping and seizing products that have been imported and/or repackaged – including medicines manufactured abroad that do not necessarily have approval for use in the UK.
The publication of Amazon’s trademarks in a government journal means that it has been accepted by the UK and EU trademark offices, and third parties now have the opportunity to object.
While there may be many objections from a healthcare perspective, challenges from a trademark perspective can only really relate to the name itself. Given the prominent use of the house brand “Amazon” and the descriptive term “pharmacy”, Amazon Pharmacy might not really be challengeable.
Perhaps the most interesting thing about the Amazon applications is simply that they have been made. In the UK you need to declare a bona fide intention to use your trademark when you make an application, which means that Amazon clearly has designs on the online pharmacy industry.
Amazon’s trademark applications cover a very wide range of products and services including pharmaceutical products and apparatus, retail services relating to pharmaceuticals, and services relating to the dispensing of medicines and medical advice and information.
The applications follow the news in 2018 that Amazon acquired the US online pharmacy PillPack, which markets itself as a full-service pharmacy. The company has also filed for trademarks in countries including Canada, Brazil, the US, Turkey, Australia and Israel – indicating that it has global ambitions for the Amazon Pharmacy brand.
It is, of course, lawful in the UK for medicines to be supplied through online pharmacies both within the NHS and privately. General sale list (GSL) medicines can be supplied by any retailer.
However, using the word “pharmacy” for a business selling pharmacy (P) medicines or prescription-only medicines (POMs) directly by Amazon would require it to register a pharmacy. The position varies across the EU, however, with some countries adopting the UK’s fairly liberal stance, other countries effectively banning online sales and some finding a position in between.
If Amazon was planning to operate its own pharmacy in England, it would need to apply for inclusion in NHS England’s pharmaceutical list of pharmacies – assuming it wanted to provide NHS services.
At the moment, it is relatively straightforward to obtain a pharmacy contract to provide distance-selling services in England. The applicant must explain how it will provide services safely and effectively to patients throughout the country, something that Amazon would be in a position to do.
Amazon would need to register with the Medicines and Healthcare products Regulatory Agency (MHRA) for the EU common logo scheme, at least until the end of this year when the Brexit transition period ends.
It would also have to follow the General Pharmaceutical Council (GPhC)’s guidance for remote services. If it intended to offer an online prescribing portal as well as supplying medicines, it may need to register that service with the Care Quality Commission.
So, Amazon could have a lot of form-filling and planning to do before it enters the UK pharmacy sector, but none of that would be insurmountable.
No one in community pharmacy in England will forget the letter from the Department of Health and Social Care (DH) to the Pharmaceutical Services Negotiating Committee (PSNC) in December 2015 announcing swinging cuts to the pharmacy budget.
Chief pharmaceutical officer for England Keith Ridge and then DH director general for innovation, growth and technology Dr Will Cavendish wrote: “The DH will also consult on how best to drive new models of ordering prescriptions and collecting dispensed medicines.
The online journey for patients remains slow and awkward and we want patients to be offered more choice about how they access their medicines and advice. In future, patients should be able to choose to order their prescriptions online and have them delivered to their home if they wish, or to ‘click and collect’ if they prefer.”
While online pharmacies are not a new concept in the UK and have their supporters and detractors, it is unlikely that any of the market incumbents will have the resources of a company such as Amazon.
It is now over four and a half years since Keith Ridge wrote his letter. If Amazon is planning to launch its own online pharmacy, might the DH get its wish, and what will that mean for community pharmacies?
Peter Byrd is an associate specialising in intellectual property law at Charles Russell Speechlys, where Noel Wardle is a partner and heads the healthcare regulation group