Discounts on price-bound pharmaceuticals impermissible

In the opinion of the Higher Regional Court Karlsruhe (OLG Karlsruhe), the issue of bonus tokens upon the purchase of price-bound pharmaceuticals constitutes a breach of § 78 Arzneimittelgesetz (AMG) and §§ 1, 3 Abs. 1 of the Arzneimittelpreisverordnung (AMPreisV) and is anti-competitive (OLG Karlsruhe, judgment of 12.02.2009 – 4 U 160/07).

The pharmacist whose case is being pursued by the Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. operates a discount system in the form of bonus tokens, which he also issues to customers upon the purchase of prescription-only price-bound pharmaceuticals. The collected tokens can in turn be exchanged for goods and thus serve a money-substitute function.

The court states in this regard that the application of the AMPreisV to this case does not depend on whether the purchase contract for the pharmaceutical is concluded with the health insurance or the insured patient, since the latter is not burdened in either case but benefits from the discount in the form of bonus tokens. This is contrary to the provisions governing price fixing of pharmaceuticals, because the bonus points represent a substantial financial incentive for the customer and thereby establish a competitive advantage for the pharmacy, which is precisely what is intended to be prevented.

According to the opinion of the OLG Karlsruhe, the difference from customary trade gifts lies in the fact that, on the one hand, while the bonus tokens are intended to encourage the conclusion of a second transaction, the discounting of the first transaction involving the price-bound pharmaceuticals is clearly in the foreground. On the other hand, the tokens are also redeemable in other businesses, which establishes their money-substitute function.

The court made no further statement on the question of whether this also applies if the bonus can only be redeemed for non-price-bound items from the pharmacy's range of products.