The questions of whether pharmaceutical companies in Germany are permitted to advertise OTC products through search engine AdWords advertising, and if so, what requirements must be met are highly controversial but have now been resolved by a recent ruling of the Federal Supreme Court.
What are search engine AdWords advertisements?
AdWord advertisements are usually displayed either in a differently coloured box at the top of the Internet search results page, or in a separate column on the right hand side of the page. The advertisement will be displayed when the user searches for any of the words or terms that the advertising client has selected as "triggers".
For the purpose of pharmaceutical advertising, it is important to note that AdWord advertisements are severely restricted in terms of length: Title lines are limited to 25 characters, the following one or two text lines are limited to 35 characters, and the concluding green text line which displays the advertiser's internet address (URL) is limited to 35 characters as well.
How to create an admissible AdWord advertisement?
This character limitation could constitute an insurmountable obstacle to OTC drug advertising, because OTC drug advertising must include a host of mandatory information. The German Medical Product Advertising Act (Heilmittelwerbegesetz, "HWG") requires that any such direct-to-patient advertising for OTC drugs which may only be dispensed in pharmacies must include, besides the name of the pharmaceutical, and the field of indication, the following sentence word-by-word: "Zu Risiken und Nebenwirkungen lesen Sie die Packungsbeilage und fragen Sie ihren Arzt oder Apotheker" (For risks and side effects please refer to the patient information and contact your physician or pharmacist). This mandatory sentence clearly exceeds the character limitations of an AdWord advertisement. If the HWG were interpreted as to require a pharmaceutical company to include this full sentence right into the AdWord advertisement displayed on the results page, AdWord advertising on pharmaceuticals would be impossible. Therefore, until the ruling of the Federal Supreme Court there has been controversial debate as to whether the mandatory sentence must be included directly in the AdWord advertisement, or whether instead a link to a separate webpage containing the mandatory information would suffice to comply with the provisions of the HWG.
The Federal Supreme Court adopted the second solution: It held that an AdWord advertisement which contains a link leading to the mandatory information is compliant, provided that the following requirements are met:
- The AdWord advertisement must include a direct electronic link (one mouse click only) to the Compulsory Information under HWG (so called Pflichtangaben (Compulsory Information)).
- The advertisement must precisely indicate that the electronic link leads the user directly to the Compulsory Information. This requires the pharmaceutical company to use the term "Pflichtangabe" (Compulsory Information) or a similar term such as "Pflichttext" (Compulsory Text) within the AdWord advertisement.
- The direct link must either lead to a website that solely includes the Compulsory Information (in this case the need of the user to scroll the site downwards in order to see all Compulsory Information would be acceptable) or – if a website includes more information than the Compulsory Information - the link must directly lead to the part of the website where the Compulsory Information is displayed.
Pharmaceutical companies which already use AdWords as part of their OTC advertising strategy should ensure that both their AdWords as well as the webpage referenced therein meet the above requirements.