Do discount campaigns on prescription-only medicines (POMs) run by mail order pharmacies lure patients into consuming medicinal products? The European Court of Justice (CJEU) in the case of Apothekerkammer Nordrhein (C-517/23) has held that they do not.
Following on from the AG Opinion of Advocate General Szpunar, which we provided an update on earlier in the year, this case is the latest in a stream of cases on advertising practices involving DocMorris, a Dutch mail-order pharmacy that supplies medicines to end customers in Germany. The CJEU concluded that the discount campaigns regarding unspecified POMs do not fall within the definition of "advertising of medicinal products" (Article 86(1) Directive 2001/83) as the discount is implemented at the point of purchase of the POM. The decision of which product to prescribe has already been taken by a doctor and all the patient is left to do is choose the dispensing pharmacy. As such, the Court held that the purpose of the discount campaign is not to encourage patients to purchase medicinal products. Rather, it is simply to attract them to a specific pharmacy.
The facts of the case are set out in our previous blog available here.
The CJEU published its judgment on 27 February 2025.
1. In relation to the first question of whether advertising of the purchase of POMs from the entire range of products of a pharmacy falls within the scope of the rules on the advertising of medicinal products contained in Article 86(1) of the Directive, the CJEU held that Member States may authorise advertising measures to promote the purchase of unspecified POMs in the form of price reductions and payments. The CJEU reasoned that if an advertisement is "designed to promote the prescription, supply, sale or consumption of medicinal products", it is advertising of medicinal products and falls within the scope of the Article 86(1). However, if a promotional campaign does not seek to influence the customer's choice of a particular medicinal product, but rather the choice of pharmacy from which that customer will purchase the medicine falls, then this falls outside the scope of the Directive.
In contrast, the CJEU found that the definition of advertising contained in Article 86(1) will apply to campaigns offering vouchers for subsequent purchase of non-POMs and other non-medicinal products on the basis that such vouchers encourage the purchase of non-POM medicinal products. Even though the vouchers applied equally to both non-POM medicinal products and other everyday items, the Court found that the promotion did encourage the purchase of non-POM medicinal products and therefore fell within the Article 86(1) definition. The Court referred to its earlier decision in EUROAPTIEKA (Case C‑530/20) where it held that advertising of medicinal products is liable to harm public health, in light of the risks which may arise from excessive or ill-considered use of non-prescription medicinal products.
Given that German national law prohibited some advertising measures that were not within the scope of the Directive and given that the advertising measures in the DocMorris campaign were disseminated electronically, the CJEU found it was necessary to examine whether Article 34 of the TFEU and Directive 2000/31/EC (e-Commerce Directive), namely Article 3(4)(a), precluded those national prohibitions. Specifically, the Court considered whether these other EU rules precluded national law from prohibiting an advertising measure by which a pharmacy established in another Member State offers its customers, in return for sending in their medical prescription and participating in a medication check, a monetary reward, without it being possible to know the exact amount of that reward. Although the national measures constituted a measure having an equivalent effect to quantitative restrictions under Article 34 TFEU, and a restriction on the freedom to provide information society services under the e-Commerce Directive, the CJEU held that national law was not prohibited in this regard. The national prohibitions prevented customers from over-estimating the amount of their reward, and were therefore justified as they served the public interest in consumer protection.
2. Article 87(3) of Directive 2001/83 provides that advertising of a medicinal product shall encourage its rationale use. The second question asked if Article 87(3) must be interpreted as precluding national legislation which prohibits advertising that promotes the purchase of unspecified POMs by means of promotional gifts in the form of vouchers corresponding to a certain sum of money or a percentage reduction for the subsequent purchase of other products, such as non-POMs. The Court held that such advertising is liable to lead to the irrational and excessive use of non-prescription medicinal products, as it distracts the consumer from an objective evaluation of the need to take such medicine. National measures that prohibit such promotions are therefore not precluded by Article 87(3).
3. It should be noted that in light of the answer to the first question, the CJEU held there was no reason to answer the third question.
Conclusion
The case provides guidance on the exact scope of the Directive in the context of promotional schemes offered by pharmacies. The Court has stressed that not all promotional activities fall within the Directive's definition of 'advertising medicinal products', and that national prohibitions of such out-of-scope advertising must comply with other EU rules on freedom of movement and e-commerce. The Court places great importance on the Directive's aim of safeguarding public health and considers that any promotions encouraging the purchase of non-POM medicinal products will fall within the scope of the Directive if they create a risk of irrational and excessive use of those medicinal products.
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