Medical Cannabis – Unfair Competition Violations in Health Platform Services

A business model for the brokerage of medical treatments with medical cannabis was regarded by the Higher Regional Court (OLG) Frankfurt a.M. as constituting unfair competition.

The expanded legal possibilities for utilising medical cannabis and cannabis products for medical purposes or simply for individual consumption open up new business models, which however do not always comply with regulatory requirements. Such a business model has now been regarded by the OLG Frankfurt a.M. as constituting unfair competition.

By judgment of 6 March 2025 (Az. 6 U 74/24), the Higher Regional Court (OLG) Frankfurt a.M. has clarified central questions of unfair competition law in connection with the marketing of medical cannabis therapies by digital platform providers. The focus was on a service provider company that provided, amongst other things, practice premises and digital infrastructure for physicians. However, in several respects, statutory advertising and professional law regulations were violated.

The defendant company was not itself a medical service provider, but offered a complete model. In doing so, cooperating physicians were linked to the platform against payment of a fee. The remuneration structure of the cooperation agreements provided that the company claimed between 60% and 79% of the physicians' gross fees for itself – differentiated according to initial and follow-up appointments (including by video consultation). In addition, it was advertised that physicians' initial consultations could take place "on-site or digitally". Additionally, the websites advertised with statements such as "Natural medicine from the market leader", "Your experts for natural treatment" and "Algea Care Patients". The advertising was targeted at medical laypersons.

Key findings of the judgment:

• Unlawful patient brokerage: The court regarded the remuneration regulations of the platform as a payment for the referral of patients in violation of § 31 MBO-Ä. The provider was classified as a participant in a professional law violation by the physicians and ordered to cease and desist (§§ 8, 3a UWG). The OLG qualified the remuneration structure as a professional law-infringing brokerage fee. The amount of the fee share transferred to the company was no longer covered by service provision, but had to be assessed as consideration for patient referral. The court regarded this as a clear violation of § 31 MBO-Ä, according to which physicians must neither receive nor be promised any remuneration for patient referral, either directly or through third parties. Even though the platform itself is not a direct addressee of physician professional law, it was held civilly liable as a participant (instigator or accessory) within the meaning of § 830 para. 2 BGB. The conduct was simultaneously assessed as a violation of § 3a UWG.
• Violation of remote treatment advertising law: The indication that the physicians' initial consultation could take place "on-site or digitally" was assessed as a violation of the medicinal advertising law prohibition on advertising for remote treatments. Although § 9 sentence 2 HWG permits advertising for remote treatments under certain conditions – however, only if these comply with generally recognised professional standards. The court made clear: For medical cannabis, which (at that point in time) was subject to narcotics law, a personal medical initial examination was mandatory. However, the advertising presentation suggested a general permissibility of digital initial consultations, without sufficient clarification – in the court's view, this was insufficient.
• Misleading advertising and layperson advertising: Statements such as "Natural medicine from the market leader" or "Algea Care Patients" falsely suggested that the platform provider itself provided medical services. This constitutes a violation of § 5 UWG. Furthermore, the court prohibited advertising for prescription cannabis outside specialist circles (§ 10 HWG). Although the defendant did not advertise a specific preparation, the overall presentation – including the visualisation of cannabis flowers and efficacy claims – was sufficient to constitute the offence of prohibited layperson advertising.

Practical relevance not only for medical cannabis

The decision exemplifies the legal boundaries that platform providers in the healthcare sector must observe. This applies in particular to business models that "attach" to medical services and thereby link economic interests with medical external presentation. The judgment is relevant not only for offerings of new platforms that focus on a very current topic such as medical cannabis, but also for more traditional medical approaches or offerings. Since there is considerable potential for legal action, an attorney from AVANTCORE Rechtsanwälte should be involved as an expert at an early stage in the planning of such a business model.