Recent court decisions confirm the rigorous standard ("Strengeprinzip") applied by German courts when analyzing whether or not health claims in respect of medicinal products are misleading. The new decisions illustrate that "partial truthfulness" in health claim advertising does not satisfy the rigorous standard:
- For example, the Higher Regional Court of Schleswig has held that the claim "Stops Diarrhoea" ("stoppt Durchfall") is misleading if the advertised medicinal product does not actually stop diarrhoea within a few hours but only mitigates its symptoms. The Higher Regional Court of Schleswig argues that the claim "stops" indicates a specific success meaning that a final state will be achieved.
- In another case, the court held that the claim "Inhibits Germs" ("hemmt Krankheitserreger") was misleading, because the advertised medicinal product at hand did not actually act against the germs itself but only mitigated the symptoms of the germ-induced disease.
Furthermore, a recent decision of the Higher Regional Court of Frankfurt has ruled that medicinal product advertising with test results from popular consumer magazines violates the prohibition on advertising using recommendations of celebrities (cf. Art. 90(f) Directive 2001/83/EC). In the case at hand, the pharmaceutical company had advertised its product with the test results generated and reported by the popular consumer magazine "ÖKO-TEST", which – like the other widely-read consumer magazine "Stiftung Warentest" – regularly assesses a wide range of consumer products. In Germany, advertising with test results of "Stiftung Warentest" or "ÖKO-TEST" is very common because these magazines enjoy a stellar reputation of trustworthiness among consumers. Against this background, the court held that test results of "ÖKO-TEST" can have an even stronger effect on patients than recommendations by a healthcare professional which are squarely prohibited under Art. 90(f) Directive 2001/83/EC. Therefore, under the ruling of the Higher Regional Court of Frankfurt, pharmaceutical companies would no longer be allowed to use test results or test seals of such magazines and organizations in its consumer advertising materials.
The above court rulings show that pharmaceutical companies are well advised to review their medicinal product advertisement materials with respect to compliance with the current case law on healthcare advertising prior to their publication in order to mitigate the risk of temporary injunction claims by competitors.