The advertising of medicines and other remedies is strictly regulated by the German Act on Advertising in the Healthcare Sector [Heilmittelwerbegesetz, HWG]. On 26 October, an amendment of the HWG entered into force which cancels numerous advertising restrictions and therewith promises new structuring possibilities for advertising in the healthcare sector. Marketing strategists at pharmaceutical companies should not celebrate too soon, however: the courts already only applied many of the previous prohibitions under the old HWG with extreme reservation in order to fulfil EU requirements. On the other hand, it also remains to be seen whether the courts will be quick to restrict these new liberties again. This supposed new advertising freedom should therefore be enjoyed with caution.
The general ban on advertising in the healthcare sector using scientific opinions and specialist publications has been lifted without replacement. But beware: even in future, publications by a scientifically recognised research institute, e.g. a study, may not always be used for advertising purposes. The new Act also still prohibits the advertising of medicines using recommendations, for example of a doctor. If the publication to be used for advertising purposes – even only indirectly – contains the recommendation to use a specific medicinal product for a specific illness, competitors will still be able to successfully contest this advertising measure.
It also remains to be seen whether, due to the lifting of the ban on the presentation of persons in work clothes, adverts containing the "doctor in his white coat" will actually become socially acceptable again. This marketing measure could still be appraised by the courts as a doctor's recommendation, which remains prohibited in future.
Caution is also still required in the use of celebrities to promote products. The new HWG extends the circle of persons who may not promote a certain medicine by recommendation to those persons who "on grounds of their prominence might incite the consumption of a medicinal product". It will be interesting to see which celebrities the courts deem likely to "incite" the consumption of medicinal products.
Moreover, the new HWG formally legalises advertising using letters of gratitude and before/after pictures, to the extent they are not "abusive, repulsive or misleading". In case of before/after comparisons, however, one must ensure that the portrayal of a loss of body mass, for example, cannot be ascribed to the work of a cosmetic surgeon. This is still prohibited. In future as well, persons targeted by an advert may not be "misled" or encouraged to make a "false own diagnosis" by the advert through advertising that relates a patient's case history. Ultimately, the Act makes it expressly clear that pharmaceutical enterprises and pharmacy mail-service companies are indeed entitled to display on their home page specific information on prescription medicines which may otherwise not be advertised to patients, e.g. the package information leaflet. The new HWG thus implements decisions of the EU courts which nevertheless still require certain limitations. For example, this information may not presented to the user unsolicited in an eye-catching manner. Rather, the user must be made to actively seek this information, for example by clicking on a further field.
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