12
medicine, and shall, in the case of a substitution, take reasonable steps to inform the person
who prescribed the medicine of such substitution;
(b)
dispense an interchangeable multi-source medicine instead of the medicine
prescribed by a medical practitioner, dentist, practitioner, nurse or other person registered
under the Health Professions Act, 1974, unless expressly forbidden by the patient to do so.
(2) If a pharmacist is forbidden as contemplated in subsection (1) (b), that fact shall be
noted by the pharmacist on the prescription.
(3) When an interchangeable multi-source medicine is dispensed by a pharmacist he or she
shall note the brand name or where no such brand name exists, the name of the
manufacturer of that interchangeable multi-source medicine in the prescription book.
(4) A pharmacist shall not sell an interchangeable multi-source medicine —
(a)
if the person prescribing the medicine has written in his or her own hand on
the prescription the words “no substitution” next to the item prescribed;
(b)
if the retail price of the interchangeable multi-source medicine is higher than
that of the prescribed medicine; or
(c)
[26]
where the product has been declared not substitutable by the council.’
An ‘interchangeable multi-source medicine’ is defined as ‘medicines that
contain the same active substances which are identical in strength or concentration,
dosage form and route of administration and meet the same or comparable
standards, which comply with the requirements for therapeutic equivalence as
prescribed’. Section 22F requires a pharmacist to inform members of the public
visiting the pharmacy with a prescription for a ‘branded medicine’ (which, it seems to
me, can be both the innovator product or a generic substitute) of the benefits of a
generic substitute for the ‘branded’ product. He must then substitute the generic for
the prescribed medicine unless he is forbidden to do so by the patient. The
pharmacist, however, may not do so if the person prescribing the medicine has
written on the prescription the words ‘no substitute’.
[27]
It was submitted that the effect of s 22F was to extend the notional consumer
to people beyond the prescribing doctor and pharmacist to include also the patient or
ultimate consumer. Support for this view is found in the Canadian judgment in CibaGeigy Canada Ltd v Apotex Inc; Ciba-Geigy Canada Ltd v Novopharm Limited,14 a
14
[1992] 3 SCR 120; 1992 CanLII 33 (SCC); 95 DLR (4th) 385, indexed as Ciba-Geigy Canada Ltd v
Apotex Inc.