News on pharmaceutical advertising: Key findings from the Court of Justice of the European Union (EuGH) ruling (C-517/23) – in the matter of DocMorris RX bonuses

The Court of Justice of the European Union (EuGH) decided on 27.02.2025 in case C-517/23 that certain advertising campaigns for prescription medicines may fall within the definition of "advertising for medicinal products" within the meaning of Directive 2001/83/EG.

Essential points of the judgment of the Court of Justice of the European Union

1. Definition of advertising for medicinal products

• • The Court of Justice of the European Union (EuGH) made clear that any measure aimed at promoting prescription, supply, sale or consumption of medicinal products constitutes "advertising" within the meaning of Directive 2001/83/EG.
  • Advertising campaigns that refer only to which pharmacy a customer should purchase their prescription medicine from do not fall within this definition.

2. Distinction between price reductions and vouchers

• • Direct price reductions or payments for prescription medicines do not fall within the definition of advertising for medicinal products.
  • Promotional gifts in the form of vouchers that can be used for the subsequent purchase of further products (e.g. non-prescription medicines or health products) do, however, constitute advertising.

3. Compatibility with EU law

• • The German regulation that prohibits vouchers for the subsequent purchase of further products is considered compatible with the Directive 2001/83/EG.
  • A national regulation that permits advertising with price reductions and payments is, by contrast, not explicitly declared to be incompatible.

4. Free movement of goods and services (Art. 34 TFEU & Directive 2000/31/EG)

• • The prohibition of advertising campaigns with non-precisely specified monetary bonuses (e.g. EUR 2.50–20 for prescription submission) is justified as consumer protection and thus classified as permissible.

Implications for practice

1. Mail-order pharmacies and advertising campaigns

• • Price reductions or payments directly on prescription medicines are not to be classified as advertising and are therefore more likely to be permissible.
  • Vouchers for the subsequent purchase of other products, by contrast, are subject to the strict advertising requirements of EU Directive 2001/83/EG.

2. Legal and competition strategy for pharmacies

• • Pharmacies, in particular mail-order pharmacies, must structure their discount and advertising strategies precisely in order not to violate national or European regulations.
  • A prohibition of voucher models for non-prescription products is justified by protection of public health and can be enforced by national authorities.

3. Future legal developments

• • Further amendments to the Heilmittelwerbegesetz (HWG) may be required, in particular with regard to the Online advertising and electronic commerce.
  • Market participants should regularly have advertising concepts legally reviewed, in order to avoid costly cease-and-desist letters or claims for damages.

If detailed analysis or adjustment of marketing strategies is desired, legal advice from the lawyers at AVANTCORE Rechtsanwälte specialising in pharmaceutical law is advisable.