Voucher advertising for pharmacies: limits of medicinal product advertising and liability under § 945 ZPO

Leading judgment of the Federal Court of Justice (BGH) on advertising with premiums and voucher advertising for pharmacies

The Federal Court of Justice (BGH) has, byjudgment of 6 November 2025 (Az. I ZR 182/22 – "Gutscheinwerbung II", clarified the legal limits fordiscount and bonus actionsand voucher advertising for pharmacies. The decision comes in the context of a years-long dispute between the Chamber of Pharmacists of North Rhine and a Dutch mail-order pharmacy that had advertised premiums, vouchers and special offers for the purchase of prescription medicinal products.

The judgment focuses on two questions:

1. When dovoucher actionsviolate § 7 HWG?
2. Under what conditions does the applicant of an interim measure become liable under§ 945 ZPOfor its enforcement?

The subject matter: prescription premiums, hotel vouchers and discount actions

The mail-order pharmacy had, in several advertising campaigns, promised customers monetary advantages in the form of voucher advertising for pharmacies for sending in prescriptions – including:

• a "prescription premium" of between €2.50 and €20 per prescription submitted,
• hotel overnight staysor a free ADAC membership for referral advertising,
• as well as €5 vouchers for subsequent purchases of non-prescription products.

The Chamber of Pharmacists of North Rhine saw in this violations ofprice bindingunder § 78 AMG and theprohibition on giftsunder § 7 HWG. Between 2013 and 2015, it obtained five interim measures. After these were subsequently partly set aside, the mail-order pharmacy demanded damages under § 945 ZPO in the amount of approximately €18 million, because the interim measures were allegedly "unjustified from the outset".

The legal framework – § 945 ZPO as a risk rule

The Federal Court of Justice (BGH) emphasises: according to § 945 ZPO,the applicantof an interim measure is liable only if it proves to have been unjustified from the outset.

No claim exists, however,

• if the interim measurewas justifiedor
• if the prohibited conductwas unlawful in any case, such that the affected party suffers no compensable damage.

With this the Senate follows its position from the judgment "Hot Sox" (BGH, GRUR 2016, 720): the enforcement of an interim measure occursalways at the risk of the applicant, but § 945 ZPO does not protect those who were materially obliged to cease the conduct.

The Federal Court of Justice (BGH) also rejected the respondent's objection that it, as alegal entity under public law, was not capable of bearing liability:

Whoever has recourse to civil proceedings and asserts unfair competition law claims in interim relief must also accept the civil procedural consequences of liability under § 945 ZPO.

Central assessment: partly justified interim measures

The Federal Court of Justice (BGH) partly set aside the judgment of the Higher Regional Court (OLG) Düsseldorf. Three of the five interim measures (of 8 May 2013, 26 September 2013 and 4 November 2014) were justified from the outset – because the underlyingadvertising measuresviolated § 7 HWG.

For two interim measures (of 5 November 2013 and 29 September 2015), the Senate remitted the case because the Court of Appealforeign law(§ 293 ZPO) had inadequately established and had not conclusively clarified whether a violation of the prohibition on importation under § 73 AMG existed. Such a violation could equally exclude the claim for damages, because then anindependent obligation to ceasewould have existed.

Conclusion: damages under § 945 ZPO are only available if the prohibited conduct was lawful. Objective unlawfulness alone is sufficient to exclude the claim.

The assessment under medicinal product advertising law – narrow limits of voucher advertising for pharmacies

At the centre of the substantive assessment stands§ 7 Abs. 1 HWG, which fundamentally prohibits promotional gifts and grants in connection with medicinal products.

The Federal Court of Justice (BGH) classifies the disputed actions precisely:

• Premiums with indeterminate value("up to €20") = impermissible.
  Specifying a mere range violates § 7 HWG because it leaves the consumer unclear about the actual benefit and produces an improper promotional effect.
• Non-monetary gifts such as hotel vouchers or club memberships are not covered by the exception under § 7 Abs. 1 S. 1 Nr. 2 a HWG, even if their monetary value is stated.
• Vouchers for future purchases ("€5 voucher for your next purchase") are likewise impermissible because they do not constitute an immediately effective price reduction.

Only immediate, specifically quantified cash discounts – such as an amount deducted immediately – fall within the exception. Everything else remains prohibited promotional value advertising.

The Federal Court of Justice (BGH) thus follows the Union law position of the Court of Justice of the European Union (EuGH) (C-517/23 – Apothekerkammer Nordrhein): National prohibitions of such voucher models as voucher advertising for pharmacies are compatible with Art. 34 AEUV because they serve consumer protection and the safeguarding of appropriate medicinal product use.

Significance for practice

The decision sends a clear signal:

Pharmacies are not permitted to offer with voucher advertising for pharmacies any financial or non-monetary incentives that go beyond an immediate price reduction. Even an unclear formulation ("up to €20") or a voucher for the next purchase can constitute a violation of § 7 HWG and thus a breach of competition law under § 3a UWG.

For mail-order pharmacies, the prohibition on voucher advertising for pharmacies applies just as it does for stationary establishments – even if they are based in the EU abroad, as long as they advertise to German customers.

Consequences for § 945 ZPO – no damages for unlawful advertising

The judgment clarifies that claims for damages under § 945 ZPO are not a "second chance" for those who advertise unlawfully. Whoever violates medicinal products or pharmaceutical law provisions cannot demand to be placed in the position they would have been in if they had continued advertising without interruption.

• Applicants for preliminary injunctions bear the risk if the order later proves to be unfounded.
• However, advertisers must allow themselves to be asked whether their conduct was even lawful – otherwise § 945 ZPO is ruled out from the outset.

Conclusion and recommendation

With "Voucher Advertising II", the Federal Court of Justice (BGH) has consistently merged the limits of medicinal products advertising law and the liability logic of § 945 ZPO:
Only those who have acted lawfully can claim damages for an unjustified injunction. At the same time, the following applies: Voucher advertising for pharmacies, bonus or loyalty campaigns remain highly risky and are only permissible in narrowly limited exceptions.

Pharmacies, mail-order traders and marketing agencies should therefore have every advertising measure reviewed legally in advance. Even a minor lack of clarity in the structure of premiums in voucher advertising for pharmacies can trigger competition law claims for cessation and liability risks.

Our firm assists you with

• designingHWG-compliant advertising campaigns,
• reviewing existing discount models,
• and the defence against or enforcement of competition law claims.

Contact the experts at AVANTCORE Rechtsanwälte in Stuttgart before your next voucher advertising for pharmacies campaign becomes a legal case. We ensure that your advertising works – legally secure, clear and compliant.