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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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