Advertising for pharmaceutical products on the Internet permitted?

The Court of Justice of the European Union (EuGH) was referred a case by the Federal Court of Justice (BGH) in Karlsruhe for a preliminary ruling on the interpretation of an EU regulation. In this case, the European Court of Justice had to decide whether pharmaceutical manufacturers are permitted to advertise their products on the Internet.

Two German pharmaceutical corporations disputed the interpretation of an EU directive which was intended to establish a Community code for human medicinal products. The differences of opinion arose from the fundamental prohibition on advertising to the public for prescription-only medicinal products, against which the defendant pharmaceutical company was alleged to have violated through the presentation of its medicinal products on the Internet.

Court's decision
In its Judgment of 05.05.2011 – Az. C-316/09 the European Court of Justice decided that EU law does not prohibit the dissemination of information about prescription-only medicinal products on its own website – by pharmaceutical manufacturers, provided that this information is only accessible to those who make an effort to obtain it themselves. Furthermore, the presentation of the medicinal product may consist exclusively in the exact reproduction of the packaging as well as in the literal and complete reproduction of the package leaflet or of the summary of the characteristics of the medicinal product approved by the competent pharmaceutical authority.

Not permitted and thus to be regarded as unlawful and therefore also anti-competitive advertising, by contrast, is the dissemination of information about a medicinal product by means of such a website which is the subject of a selection or reformulation carried out by the manufacturer, which can only be explained by an advertising objective.

Conclusion

Following the judgment of the EuGH, the mere presentation of the medicinal product on the Internet in the form offered on the market does not appear to be qualified as (prohibited) advertising. Any even slight deviation, however, would in individual cases probably be assessed differently, so that the utmost caution is required here and recourse should only be had to specialised legal advice.