Company will have to pay R$ 10 million after the decision of the Maranhão Court; practice is common in chain pharmacies
The pharmacy chain was ordered by the Maranhão Court to pay R$10 million in collective moral damages for making the granting of discounts conditional on the provision of customers’ personal data, such as their CPF. The sentence was signed on May 29 by judge Douglas de Melo Martins, from the Court of Diffuse and Collective Interests of the District of São Luís Island. Here is the (PDF – 82 kB)
The practice, common in large chain pharmacies, was assessed by the Maranhão Court as “vitiated consent” e “abusive” for linking personal data to the discount. According to the decision, the strategy takes away the consumer’s real freedom of choice and makes consent to the processing of information invalid. Appeal is possible.
“When the company establishes an artificially high base price and conditions access to the real and practicable market price only to those who provide their personal data, economic coercion occurs”, stated the judge in the sentence.
According to the judge, drug consumers are often in a fragile situation due to health reasons and are forced to hand over their identification to pay a fair price for the medicine.
In its reasoning, the Court stated that the consumer does not receive sufficient information about the purpose of the collection, the storage time of the data, possible sharing with third parties or use of the information to form consumption profiles. Therefore, consent could not be considered free, informed and unambiguous, as required by data protection legislation.
Pharmacy denies irregularities
Drogasil denied irregularities. The company stated that the CPF request would be optional and linked to benefit programs, without commercialization, improper sharing or abusive use of information. It also presented to the file a procedure from the (National Data Protection Authority) that would have been archived after the adoption of adequacy measures.
The judge, however, stated that administrative filing does not prevent civil liability. According to the sentence, the ANPD’s actions do not replace the Judiciary’s analysis of the abusiveness of the consumer relationship.
Conviction
The judge ordered Raia Drogasil SA to pay R$10 million to the State Fund for the Protection of Diffuse Rights. The company will also have to immediately cease the practice of making regular counter discounts and shelf promotions conditional on the mandatory provision of CPF or any other personal data.
According to the ruling, promotional prices must be available to all customers, regardless of prior registration. The company will also have 60 days to implement a clear consent policy at all of its points of sale. In case of non-compliance, the daily fine will be R$100,000, initially limited to 60 days.
The decision may have an impact beyond the specific case, because it questions a widespread practice in Brazilian pharmaceutical retail. Although Raia Drogasil is the defendant, the reasoning creates a relevant precedent by stating that common over-the-counter discounts cannot depend on the delivery of personal data.
For the Maranhão Court, data collection is only valid when there is free, informed and unequivocal consent, without economic loss to the consumer who refuses to provide the information.
