ICPA vs Clicks battle heads to Constitutional Court

The legal battle between the Independent Community Pharmacy Association (ICPA) and Clicks on pharmacy ownership and patient rights is heading to the Constitutional Court.

This comes after the Supreme Court of Appeal (SCA) upheld an appeal against a decision of the Western Cape High Court last year on whether the Clicks Group had contravened the Pharmacy Act by owning a drug-making facility.

The Clicks Group owns 100% of Clicks Retail, a chain of about 600 pharmacies including Unicorn Manufacturing, which falls under a subsidiary, New Clicks.

The ICPA lodged a complaint with the health department against Clicks, calling for the manufacturing licence of Unicorn Pharmaceuticals to be revoked.

Unicorn holds 39 generic medicines under the regulatory regimes that apply to the sale of medicines.

In a long-running David vs. Goliath battle, ICPA had a victory in the Cape Town High Court in June 2020 when the court ruled that Clicks’ corporate structure contravened certain regulations under the Pharmacy Act, prohibiting companies with beneficial interest in community pharmacies from directly or indirectly owning manufacturing pharmacies.

The court ruled 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.”

The ICPA is a non-profit company representing the interests of over 1,200 independent pharmacies.

In a statement, the IPCA said 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,” ICPSA said.

The ICPA when it heads to the apex court, it will argue that the Clicks’ corporate structure is in contravention of the Pharmacy Act and Regulations, and that if allowed to continue in this manner, the retail group is infringing on individuals’ rights to access to health care services.

The case in the Constitutional Court is expected to be heard on 1 September.

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