Facts of the case
The judgment of the Higher Regional Court of Frankfurt am Main of 10 August 20171 was issued in preliminary injunction proceedings. The parties in the case were competitors in relation to the production and distribution of products for the measurement of blood pressure in hospitals.
The defending company had advertised a new product in a brochure with reference to articles from professional journals, without clearly mentioning the year of their publication. Information about the respective articles could only be found on the last page of the brochure.
In this regard, the claimant argued a violation of Section 6 no. 2 of the German Drug Advertising Act, which applies to the advertising for medical devices. According to this provision, it is not admissible to refer to an article in a professional journal without mentioning the date of the publication.
The Higher Regional Court of Frankfurt am Main assumed a violation of Section 6 no. 2 German Drug Advertising Act despite the information about the respective articles on the last page of the brochure.
The Court stated that the advertising in question would not comply with Section 6 no. 2, taking into account that relevant parts of the addressed public would not browse through the brochure until the last page, i.e. they would not find the source of information. Therefore, the information about the respective articles must be presented in a way that an active search was not necessary.
Under consideration of the case law on the advertising with results of a product test, the Court pointed out that it would not suffice to just mention the source of information somewhere. Rather, it would be obligatory that the information can be found easily, at least by an asterisk reference.
The requirements of Section 6 no. 2 German Drug Advertising Act were the same as the requirements for the advertising with results of a product test. The addressed public must be in the position to study the referenced articles. This was not possible without clearly mentioning the year of their publication.