According to a judgment by the Court of Justice of the EU on Thursday 27 February (case C-517/23), Member States may authorise advertising campaigns for the purchase of unspecified prescription-only medicines that take the form of price reductions or payments of an exact amount.
In addition, Member States may prohibit advertising campaigns for the purchase of such medicines in which vouchers are offered for the subsequent purchase of non-prescription medicines and health and care products.
Since 2012, DocMorris, a Dutch mail-order pharmacy, has been running various advertising campaigns for customers in Germany, promoting the purchase of prescription-only medicines. At the request of the Professional Association of Pharmacists of the North Rhine region, the Cologne Regional Court has adopted interim measures prohibiting advertising by DocMorris. The latter is claiming damages of around €18.5 million from the Professional Association of Pharmacists before the German courts. According to DocMorris, the interim measures were unjustified.
Directive 2001/83 on the Community code relating to medicines for human use requires Member States to prohibit the advertising to the general public of prescription-only medicines. On the other hand, non-prescription medicines may be advertised under certain conditions.
The Court found that the directive does not apply to advertising for the purchase of unspecified prescription medicines in the form of price reductions or payments of an exact amount or a bonus, the exact amount of which was not known in advance. According to the Court, these advertising campaigns do not promote the use of these medicines. The Directive does not therefore preclude such advertising, where it takes the form of a fixed sum of money or a sum to be calculated in a fixed manner, from being lawful under German law.
That being so, the Court considers that a Member State may, on consumer protection grounds, prohibit advertising for the purchase of unspecified prescription medicines which offers a price reduction the exact amount of which the customer does not know in advance. Accordingly, in the Court’s view, the Directive does not preclude a ban on such advertising activities under national law.
Link to the judgment: https://aeur.eu/f/foa (Original version in French by Lionel Changeur)