Pharmaceutical Law

Judgement of OLG Hamm (Higher Regional Court Hamm) of 30/11/2010, file number: I-4 U 88/10

It is illegal to advertise with the effect of food that does not join the current scientific knowledge or which proof is not scientifically provided. Thus, the advertising of capsules that are supposedly “fat-eaters” stimulating the body’s own slimming hormone without providing any study proof is misleading. In particular, consumers who suffer from their obesity are often less critical to new products being advertised and therefore more vulnerable than other consumers.

Press release No. 37/09 of LG München I (Regional Court Munich I) of 16/12/2009, file number: 7 O 17092/09

If a pharmaceutical company advertises a medicine using the adjective "Acute", the average consumer should expect quick effect in order to relief his ailment, an improvement of his physical situation within the next 20 – 60 minutes after taking the medication. If the effect takes place one day after the intake, a considerable temporal delay is present and, therefore, states a misleading advertising for the consumer.

Judgement of the EuGH (ECJ) of 06/10/2009, file number: C-501 / 06

In parallel trade with medicaments it is not allowed to meet an arrangement with national wholesalers in which different prices are arranged. Prices in the resale of a refundable medicament to national chemist’s and hospitals should be lower as the required prices for an export from another member state.

Judgement of OLG Hamburg (Higher Regional Court Hamburg) of 23/04/2009, file number: 3 U 211/08

Comparative advertising between original preparations and generics may not take for granted that generics are a cheaper alternative if the range of application of both drugs is not identical. The same happens if they coincide in most of their substances and range of application. Medicaments advertising are defeated by strict conditions due to the health protection, they must be direct, clear and correct.

Decision of LSG Mainz (Higher Social Court Mainz) of 04/06/2009, file number L 5 KR 57/09 B ER

German statutory health insurances may not advertise their members through a bonus system, by which money would be saved by ordering drugs on a foreign internet and mail-order pharmacy. Rather, such an action violates against valid medicament contracts (ALV) of the single federal states. In addition, this form of advertising is also unfair, since it offends against the basic-juridically standardised policy of neutrality.

Judgement of BGH (Federal Supreme Court) of 11/09/2008, file number: I ZR 58/06

Advertisement is delusive for the consumer when the average consumer is not able to gain essential information from the advertisement. The significant communicative device features shall be considered. In case of television commercials, the consumer should consider audio-, as well as video information. (§5 paragraph 2 clause 1 UWG – Fair Trade Law; article 7 paragraph 1 and 3 of the guideline 2005/29/EG about unfair business internships).