Mandatory information for medicinal products must be correctly placed!

Is it sufficient if the mandatory information for medicinal products under the Medicines Advertising Act is only listed at the very end of a website? No, the Higher Regional Court of Cologne (OLG Köln) decided.

A trader offered medicinal products to consumers on its website. A competition association issued the trader a cease-and-desist letter for a breach of the Medicines Advertising Act. The association accused the trader of not correctly placing the mandatory information required by the Medicines Advertising Act (HWG) ("Read the package leaflet and consult your doctor or pharmacist regarding risks and side effects").

The competition association took the view that by designing the website in this manner, the trader breached the aforementioned obligation under the Medicines Advertising Act. The mandatory information had not been assigned in accordance with the law to the respective advertising for the medicinal product.

Because only after other information at the very end of the website were the mandatory disclosures finally displayed, namely the designation of the advertised medicinal products, their fields of application, and the notice "Read the package leaflet and consult your doctor or pharmacist regarding risks and side effects". The consumer could not perceive the mandatory information in direct connection with the advertising, according to the complaint of the competition association.

The trader was of the view that the presentation chosen on the website did not constitute a breach of the statutory regulations. The provision did not indicate that the mandatory information could not be located at the end of the advertising (collectively). Furthermore, it was harmless that the mandatory information became apparent only through "scrolling down".

Court decision on mandatory information for medicinal products

The Higher Regional Court of Cologne (OLG Köln) (Urt. v. 13.03.2020, Az. 6 U 201/19) decided that the placement of the mandatory information at the very end of the website constitutes a breach of the Medicines Advertising Act and at the same time a breach of competition law.

The mandatory information for medicinal products, including the text "Read the package leaflet and consult your doctor or pharmacist regarding risks and side effects", must be stated in clearly legible form and must be clearly separated and distinguished from the other advertising statements. The criterion of good legibility focuses on easy perception of the mandatory information. This requires not only "good legibility" (adequate font size, etc.). The overall perceptibility and therefore also the position of the mandatory information for medicinal products played an important role, according to the court.

The necessity of scrolling, however, does not in itself lead to knowledge being made more difficult. The internet user is accustomed to this. What matters crucially is the possibility of perception. The mandatory information was not given in a permitted manner if the user no longer expected any information attributable to the product.

The consumer does not expect further information about the respective medicinal product after he has taken note of the presentation for this medicinal product. In the present case, however, it was an extensively designed website. On this, after the presentation of the respective medicinal product, further categories of information such as "frequently asked questions" or other information were presented in detail. The mandatory information was only displayed after the imprint, terms of use and data protection declaration.

Thus, there was no easy perception of the mandatory information for medicinal products and thus a breach of competition law, according to the court.

Conclusion

Mandatory information for medicinal products must be clearly identifiable to the user. This is not ensured if additional content is inserted on the website after the advertising for the product and the mandatory information is only displayed at the very end of the page, even after the imprint, terms of use and the data protection declaration.