The CJEU issues new ruling on advertising of medicinal products
The case concerned five different advertising campaigns run by DocMorris NV, involving offering customers monetary rewards, discounts or vouchers in exchange for submitting a medical prescription.
The CJEU assessed two key legal questions:
- whether the advertising campaigns fell within the concept of "advertising of medicinal products" under Art. 86(1) of Directive 2001/83/EC on the Community code relating to medicinal products for human use (the Medicines Directive), and
- whether German national legislation on such advertising measures was compatible with EU law, according to which advertising must be objective, balanced and not misleading.
The concept of "advertising of medicinal products"
Broad interpretation of "advertising": The CJEU emphasised that the concept of "advertising of medicinal products" must be interpreted very broadly, covering "any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products".
The CJEU further clarified the following principles:
- The concept of "advertising of medicinal products" can cover both communication about specific medicinal products and communication about unspecified medicinal products.
- The purpose of a communication is key in determining whether it qualifies as advertising. If the campaign is merely informative, it is not advertising. However, if the communication seeks to influence a consumer's purchasing behaviour, it may qualify as advertising. An advertising campaign aiming only to influence the consumer's choice of pharmacy does not fall under the definition of "advertising of medicinal products".
Application in relation to DocMorris' campaigns: The CJEU analysed the five advertising campaigns conducted by DocMorris and distinguished between them based on their effects.
Not advertising of medicinal products: Three of the campaigns involved offering customers either a monetary reward per prescription or an immediate price reduction on prescription-only medicinal products. The CJEU reasoned that these campaigns merely sought to influence the choice of pharmacy and did not promote the prescription or consumption of medicinal products. Since prescribing decisions rest solely with doctors, these campaigns were not considered "advertising of medicinal products".
Advertising of medicinal products: The remaining two campaigns offered customers vouchers for non-prescription medicinal products or non-medicinal products, such as health and care products, in exchange for submitting a medical prescription. The CJEU held that these campaigns did encourage the purchase of non-prescription medicinal products, because consumers, attracted by the economic advantage, might use the vouchers to obtain non-prescription medicinal products at a reduced price. As a result, these campaigns did fall under the definition of "advertising of medicinal products".
Advertising must be objective, balanced and not misleading
It follows from Article 87(3) of the Medicines Directive that advertising of medicinal products should encourage the rational use of the medicinal product, by presenting it objectively and without exaggerating its properties, and that it should not be misleading.
The CJEU examined the specific campaigns in which DocMorris offered vouchers giving customers the opportunity to purchase products from the pharmacy's entire product range - except prescription-only medicinal products - at a reduced price.
The CJEU found that:
- This type of campaign equated non-prescription medicinal products with other consumer goods.
- Such equivalent treatment could lead to irrational and excessive use of non-prescription medicinal products.
- Therefore, the Medicines Directive does not preclude national legislation that prohibits advertising measures promoting the purchase of unspecified prescription-only medicinal products through promotional gifts, vouchers or discounts on other products (such as non-prescription medicinal products).