Direito do consumidor frente à impossibilidade de devolução de medicamentos sujeitos a controle especial

Abstract

Framework in guaranteeing several rights to the so-called in consumer relations, the Consumer Protection Code (Law No. 8070, of 11 September 1990), is the instrument, from the State, for consumer protection, as recommended in article 5, XXXII of the Federal Constitution. Not less important was the publication of Portaria n ° 344, dated May 12, 1998, and Resolution of the Collegiate Board of Directors (RDC) n ° 20, of May 5, 2011, both edited by National Agency of Sanitary Surveillance (ANVISA) and which discipline, among others commercialization of medicines subject to special control. The point of of these normative species occurs when the consumer intends to perform exchange of this type of medicine - for reasons such as therapy or death of the user - and the pharmacy or drugstore refuses to do so. DISCUSSION - The exchange of products is regulated in the Code of Consumer Protection - CDC - in cases of face-to-face transactions and purchases of products with some type of addiction not described or not predicted. However, the consumer may have the because of the "fame" of the CDC, that its right to exchange is broader than the in the law. In the case of medicinal products subject to special control, these are governed by different standards of other products. Such medicinal products have a greater potential to cause adverse reactions and their benefits must justify their risks; like all perishable products, degrade when exposed to light, excessive heat and to moisture, and present an additional risk related to the formation of metabolites less effective or toxic. They are commonly referred to as "controlled", and are prescribing medical prescription. The exchange of medicines "Controlled", in turn, is only possible when from the manufacturing process (organoleptic changes, lower than that described on the packaging, malfunctions, among others), with respect to article 18 of the CRC, supplemented by articles 20 of the RDC No 20/2011 and 44 of the No 344/1998. The central issue is the conservation of the "controlled" medicinal product: pharmacies and drugstores should guarantee the ideal conditions for this, according to RDC n ° 44/2009 of ANVISA, which is exhausted when the product comes out of these establishments. In the case of acceptance of the return, others that buy the "controlled" drug reintegrated into the stock would be at risk. 11 consumption of a product which has been dangerously modified in relation to its characteristics. The CDC itself states in Article 6, item I, that "the protection of the life, health and safety from the risks posed by products and services considered dangerous or harmful "is one of the basic rights of the consumer, making the act of accepting the exchange and reintegrating the "controlled" to stock. Contrary to the terms of normative force, it is possible to privilege a and a DRC under Law 8078/1990; in fact, such standards consumer and enshrining the principle of supremacy of the public interest over the particular, where it becomes noticeable that the right of an individual can be to ensure that the physical integrity of a population is not compromised. CONCLUSIONS / FINAL CONSIDERATIONS - Taking into account the health risk associated with the legal factor, it is acceptable the impossibility of the return, through exchange, of drugs subject to special control, based on health issues protection of the community. Even so, the medicines that can not be returned. Should be the possibility of implementing the same care with the other medicines, as well as thinking about training actions of the Surveillance organs Sanitary.