In addition to the prohibition of advertising gifts according to Section 7 of the Law on Advertising in the Health Care System (HWG) (see the blog post of August 3, 2021), the catalogue of mandatory information according to Section 4 HWG, among others, must also be observed in the advertising of medicinal products.
In addition to the information listed in Section 4 (1) HWG, such as the name or company and registered office of the pharmaceutical entrepreneur, the name of the medicinal product, its composition, as well as the indication, contraindications and side effects, the generally known additional text: “For risks and side effects, read the package leaflet and ask your doctor and pharmacist” (according to Section 4 (3) HWG) is also obligatory when advertising outside specialist circles, i.e. to consumers, with a few exceptions (so-called minimum information core).
In order to ensure that the above information is also seen by the consumer, it is the legislator’s intention that it must be “clearly distinct, delimited and clearly legible” in contrast to the other advertising statements (cf. Section 4 (3) sentence 1 et seq. and Section 4 (4) HWG).
However, when deciding on the specific design of an advertisement (on the internet or in print form), the question sometimes arises as to how these requirements should be implemented in detail, which is usually not easy to answer. Therefore, corresponding advertisements frequently find access to assessment by a competent court following an objection from a competitor or consumer association.
For example, last year, the Higher Regional Court of Cologne stated with regard to the placement of the necessary mandatory information that an overall view was required in the case of a double page spread for a pharmacy-only medicinal product. Inthis context, it is decisive whether the consumer perceives the two pages as a single advertisement or as two separate advertisements. In the specific case, the Higher Regional Court confirmed the Regional Court’s assessment, according to which there was no homogenous advertising on the double page spread due to the graphic design, and thereby dismissed the appeal directed against this decision (judgment of 26 June 2020, file ref. 6 U 17/20; previous instance: judgment of 7 January 2020, file ref. 81 U 90/19). However, under certain circumstances, corresponding assessments with regard to a print media advertisement may differ from an assessment of an internet advertisement.
The cited examples of case law clearly show that a schematic approach is also prohibited with regard to the assessment of the admissibility of advertisements for medicinal products under the HWG. Instead, an examination of the individual case is required, taking into account the case law of the competent higher courts.