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Supreme Court upholds approval of online drug sales in Japan

Kyodo

The Supreme Court on Friday approved the online sales of over-the-counter drugs, ruling in favor of two online retailers that argued that a government ordinance banning such sales is excessive and illegal.

The top court turned down an appeal from the government against a Tokyo High Court ruling in 2012 that repealed an earlier lower court rejection of suits filed by Kenko.com Inc., a Tokyo-based online store selling health products, and Wellnet, a Yokohama-based firm that sells heath products, cosmetics and drugs on Rakuten Ichiba, the country’s biggest online shopping mall.

The Supreme Court’s four-justice Second Petty Bench unanimously ruled that the ordinance issued by the Health, Labor and Welfare Ministry is “illegal and invalid,” noting that such an across-the-board ban on online sale of drugs violates the Pharmaceutical Affairs Law.

The 1960 law was revised in 2009 to break down over-the-counter drugs into three categories based on the risk of side-effects and stipulates that pharmacists provide information to customers in an appropriate manner when selling them.

Under the ordinance, drugs such as gastrointestinal and cold medicines as well as hair growth agents are designated as high-risk (categories 1 and 2) and are required to be sold face-to-face at pharmacies, while the online sale of low-risk drugs in category 3, including vitamin supplements, is permitted.

Friday’s Supreme Court decision immediately became binding, paving the way for the resumption of online sales of over-the-counter drugs.

Kenko.com said it resumed online sales of such drugs Friday, while Wellnet said it will do so soon.

Health, Labor and Welfare Minister Norihisa Tamura said his ministry will study new measures to govern online sales of over-the-counter drugs.

In the ruling, Justice Yukio Takeuchi, who presided over the case, said the ministry’s 2009 ordinance, which placed restrictions on the online sale of drugs that had been allowed until then, considerably limits the freedom of occupation as guaranteed by the Constitution.

The national charter stipulates, “Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.”

The top court said there is considerable demand for online sales of over-the-counter drugs and many experts say the restrictions of such sales are excessive.

In the lawsuit, the Tokyo District Court ruled against Kenko.com and Wellnet in March 2010, but the Tokyo High Court ruled last April that the blanket ban should be invalidated, saying there are no provisions to prohibit online sales.