Prohibition of sponsorship of a radio programme by a group of private clinics: intrusive advertising within the meaning of the Vaud Public Health Act, no arbitrariness, equality of treatment and economic freedom respected

Facts

The appellant, [A. SA] , is a public limited company with its registered office in [B.] , whose purpose includes holding interests in companies active in the care and health sector. It operates several private health establishments in the canton of Vaud, in [B.] , [C.] and [D.] .

Since February 2018, the company has advertised on the radio station Lausanne FM (LFM) as part of a segment entitled 'Médecin au quotidien', broadcast Monday to Friday, usually lasting two to three minutes. Each broadcast begins with an announcement mentioning the group's clinics and LFM, interviews a doctor practising in a clinic controlled by the company on a health topic (breast cancer, glaucoma, facelift, breast augmentation, etc.), and then ends with the doctor's name, specialty and the clinic where he practises.

After obtaining information about this segment and hearing the company, the Head of the Department of Health and Social Action of the canton of Vaud, by decision of 13 December 2018, found a breach of cantonal law and ordered the cessation of this advertising.

By judgment of 24 September 2019, the Administrative and Constitutional Law Division of the Vaud Cantonal Court dismissed the company's appeal, holding that sponsorship of a radio programme constituted prohibited advertising and that the injunction did not violate economic freedom.

The company appeals to the Federal Supreme Court, seeking the lifting of the prohibition or, in the alternative, the remittal of the case. The Cantonal Physician asks for the appeal to be dismissed. The Cantonal Court leaves the matter to the court's discretion. The Federal Office of Communications files observations without taking a position on the outcome of the appeal. The application for suspensive effect was dismissed on 14 November 2019.

Subject matter of the dispute: the prohibition imposed on the appellant from sponsoring a daily medical segment on LFM pursuant to Vaud cantonal law.

Considerations

On the primacy of federal law (art. 49 para. 1 Cst.), the appellant argues that the Federal Act on Radio and Television (RTVA, art. 10 paras. 1-4) comprehensively regulates advertising and excludes any cantonal competence. The Federal Supreme Court leaves open the question of whether the complaint is a federal law objection or a fundamental rights complaint (untimely, raised only in the reply). It notes that the Vaud Public Health Act (LSP) and the RTVA do not have the same purpose: the former aims at the health of the population and regulates the advertising of health professionals (art. 82 LSP), while the latter governs the technical broadcasting of programmes. Public health falls in principle within cantonal competence (art. 3 Cst.), the Confederation having only limited competence (art. 118 Cst.).

On arbitrariness in the application of cantonal law (art. 9 Cst.), the Federal Supreme Court recalls that cantonal interpretation is reviewed only under the angle of arbitrariness. Art. 82 para. 1 LSP prohibits advertising that is not objective, does not serve the public interest, and is intrusive or misleading; art. 24 para. 2 of the Vaud Regulation on Health Establishments (RES) prohibits wide-scale and systematic dissemination or indiscriminate sending of advertising leaflets, as well as advertorials. Literally, the provision is awkwardly worded, but the conjunction 'ou' (or) permits, without arbitrariness, linking wide-scale dissemination to modes of communication other than the sending of prospectuses, the term 'diffusion' (dissemination) relating rather to an oral message such as on the radio. Systematically, interpreting art. 24 para. 2 RES in light of the whole of art. 82 para. 1 LSP is not untenable: it would be doubtful that the legislator intended to allow small-scale intrusive advertising, and advertising, even if objective, must remain discreet, clear and measured, according to the overall impression.

The Federal Supreme Court considers that daily dissemination from Monday to Friday is, without arbitrariness, qualified as systematic, and that broadcasting on a local radio station, also heard in public places, constitutes wide-scale dissemination, without it being necessary to establish the precise number of listeners (art. 97 para. 1 FSCA). Radio advertising imposes itself on the listener, unlike a leaflet one chooses to read, and therefore constitutes intrusive advertising. The restrictive interpretation is confirmed by the preparatory works of art. 40 let. d MedPA, whose wording art. 82 para. 1 LSP reproduces, as well as by federal legislation on health professions, medicinal products and medical devices, which permit medical advertising in a restrictive manner. The Federal Supreme Court observes that the segment more closely resembles an advertorial, expressly prohibited by…