Online pharmacy may not distribute vouchers

Advertising may not promote the consumption of medicinal products, even if they are over-the-counter medicines. This was pointed out by the Frankfurt am Main Higher Regional Court (OLG Frankfurt). Its ruling (case no. 6 U 347/24) prohibits a Dutch mail-order pharmacy from advertising vouchers to customers in Germany.

A competitor took the pharmacy to court because it offered vouchers worth ten euros in two different advertising campaigns: Firstly, it issued the vouchers for each redemption of e-prescriptions. The vouchers were initially to be offset against the statutory co-payment and any remaining balance against non-prescription products. Secondly, it rewarded the first order of non-prescription items via a specific smartphone application with vouchers that could then be redeemed in the same app.

In November, the Regional Court of Frankfurt am Main (LG Frankfurt) issued a temporary injunction prohibiting both advertising practices; the Higher Regional Court has now confirmed this. According to the reasoning, the voucher campaigns violate the German Therapeutic Products Advertising Act (HWG). Section 7 of the HWG prohibits the offering and announcement of promotional gifts of more than minor value when selling medicinal products. Whether the products require a prescription or not is irrelevant. The court defines "low-value trifle" as a maximum of one euro for advertising to the public. The ban on value advertising also applies if it is not used for a specific medicinal product but for a large number of remedies.

Main proceedings possible

The full text of the judgment and its reasoning is not yet available. According to the Higher Regional Court, the decision from May cannot be appealed; however, the pharmacy in question may attempt to convince the competent courts of a different legal opinion in the main proceedings. It remains to be seen whether the Dutch company will take this legal route in view of the clear statements made by the Regional Court and the Higher Regional Court.

Incidentally, the relevant provisions are not the same everywhere in the EU. Austria, for example, prohibits any solicitation of laypersons to purchase prescription-only medicines at a distance. On the other hand, the legal rules for over-the-counter medicines are less strict. In addition, there are restrictive provisions of the Austrian Chamber of Pharmacists, but these certainly only apply to members.

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