The EU Court of Justice rules on the prohibition of advertising campaigns for prescription and non-prescription medicinal products
By Karel Janssens and Rasmus Van Heddeghem
In its judgment of 27 February 2025 (C-517/23), the EU Court of Justice ruled on several advertising campaigns relating to the purchase of medicinal products. The Court clarified whether these campaigns should be considered as advertisement for medicinal products in the meaning of Directive 2001/83 (“Medicines Directive”), and if so, if they comply with the requirement to encourage the rational use of medicines. The compatibility of a national prohibition with the provisions relating to the free movement of goods in Article 34 TFEU and in Article 3(2) of Directive 2000/31 (“E-commerce Directive”) was also assessed.
Facts of the case
DocMorris is a mail-order pharmacy based in the Netherlands that supplies prescription and non-prescription medicinal products. The Professional Association of Pharmacists of the North Rhine region (“PAPNR”) was of the view that various advertising campaigns ran by DocMorris for its German customers violated the German legislation on medicinal products. The advertising campaigns consisted of price reductions, a cash reward and, in other cases, vouchers for the subsequent purchase of other products.
The PAPNR obtained interim measures prohibiting these campaigns, but most of these measures were set aside in the subsequent proceedings. As a result, DocMorris lodged a claim for damages against the PAPNR. The case ended up before the Bundesgerichtshof (Federal Court of Justice), which decided to stay the proceedings and to refer several questions to the EU Court of Justice for a preliminary ruling.
Findings of the EU Court of Justice
With regard to the concept of advertising of medicinal products
First, the Court examined the question whether the campaigns qualify as advertising of medicinal products within the meaning of Article 86(1) of the Medicines Directive. This article defines the concept of advertising of medicinal products very broadly as including “any form of door-to-door information, canvassing activity or inducement designed to promote the prescription, supply, sale or consumption of medicinal products”.
Referring to its previous case law (see DocMorris, C‑190/20 and EUROAPTIEKA, C‑530/20), the Court considered that, in order to determine whether an advertising campaign designed to encourage the purchase of prescription-only medicines from a pharmacy’s entire product range falls within the concept of advertising of medicinal products, it is necessary to assess (i) whether that campaign is intended to promote the prescription, supply, sale or consumption of medicinal products, even if unspecified, or (ii) whether it is intended only to influence the choice of the pharmacy from which the customer will purchase prescription-only medicinal products.
The Court then assessed DocMorris’ advertising campaigns which related to unspecified prescription-only medicines. These were (i) advertising that offered customers, in return for sending in their medical prescription, a reward of between EUR 2.50 and EUR 20 per prescription if they also participated in a “medication check”, and (ii) advertising offering a discount of EUR 10 or EUR 5 which was directly deducted from the amount of the invoice for the prescribed medicines.
According to the Court, these campaigns do not promote the prescription or consumption of unspecified prescription-only medicines, since the decision to prescribe such medicines is the sole responsibility of the doctor. The patient can only choose the pharmacy from which to buy the medicinal product. As a result, these campaigns only concern the choice of the pharmacy and do not qualify as advertising of medicinal products within the meaning of Article 86(1) of the Medicines Directive.
Next, the Court analysed DocMorris’ advertising campaigns that do not solely concern unspecified prescription-only medicines, but also relate to other products. These concern (i) a campaign that provided for a referral scheme, under which, when a friend of a DocMorris customer sent in a medical prescription, that customer received a voucher for a stay in a hotel, or an offer to join the German automobile club at a reduced price, while his or her friend was offered a voucher to be used to order non-prescription medicines or health and care products, and (ii) a campaign which offered DocMorris customers, in return for sending in a medical prescription, a EUR 10 voucher to be used for the subsequent purchase of non-prescription medicines or health and care products.
The Court found that these advertising campaigns encourage the purchase of non-prescription medicinal products. The recipient of the vouchers may, attracted by the economic advantage of these vouchers and in absence of an obligation to have recourse to a prescribing doctor, use the vouchers to obtain non-prescription medicines at a reduced price. Thus, by promoting the consumption of non-prescription medicines, these campaigns must be regarded as advertising of medicinal products. The fact that the vouchers may also be used for the purchase of goods other than non-prescription medicines, such as health and care products, does not call this finding into question.
With regard to the rational use of medicinal products
Advertising for non-prescription medicines is, in principle, permitted under the Medicines Directive. However, such advertising is the subject of conditions and restrictions, among which the prohibition to promote the irrational use of medicinal products.
Therefore the Court evaluated whether the last-mentioned advertising campaigns of DocMorris (those relating also to non-prescription medicines and other products) complied with the restrictions laid down in the Medicines Directive.
The Court considered that, by using the vouchers, consumers may obtain, at a reduced price, products from the entire product range of the pharmacy concerned, with the exception of prescription-only medicines. A consumer may, for example, choose between buying non-prescription medicines and purchasing other consumer products, such as health and care products. Such advertising campaigns therefore treat non-prescription medicines in the same way as other consumer products offered by a pharmacy.
The Court held that such equivalent treatment is liable to lead to the irrational and excessive use of non-prescription medicinal products. It conceals the very particular nature of those medicinal products, i.e. the therapeutic effects which distinguish them substantially from other goods. That equivalent treatment distracts the consumer from an objective evaluation of the need to consume medicinal products.
As a result, the Court concluded that national legislation may prohibit such advertising campaigns as they encourage the irrational and excessive use of non-prescription medicines.
With regard to the free movement of goods and information society services
Under the German legislation, the advertising campaign which offered DocMorris’ customers, in return for sending in their medical prescription, a reward of between EUR 2.50 and EUR 20 per prescription, was unlawful since it concerned an advertising benefit or gift of which the exact amount was unknown.
Since the Court had found that such advertising campaign did not qualify as advertising for medicinal products (and thus did not fall under the prohibition of advertising for prescription-only medicines as set out in the Medicines Directive) but was nevertheless prohibited under the German legislation on pricing rules in advertising for medicinal products, the Court examined whether such national legislation is compatible with EU law. In particular, such a national prohibition may constitute a restriction of the principles of free movement enshrined in Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) and in Article 3(2) of the E-commerce Directive.
In this respect, the Court held that the prohibition of such an advertising campaign, as provided for in the German legislation, has a greater impact on pharmacies established in a Member State other than the Federal Republic of Germany than on those which are established within German territory. Such an obstacle to market access can, however, be properly justified if it is appropriate for securing the attainment of its objective and does not go beyond what is necessary in order to attain it (see Deutsche Parkinson Vereinigung, C‑148/15).
The Court found that the German prohibition of the advertising campaign comes within the scope of consumer protection and prevents consumers from overestimating the amount of the reward. The Court was also of the view that the legislation does not go beyond what is necessary to attain that objective. As such, the Court found that Article 34 TFEU and Article 3(2) of the E-commerce Directive do not preclude national legislation such as the German prohibition.
Final remarks
The advertising of prescription and non-prescription medicines is tightly regulated under the Medicines Directive. Therefore, it is important to know whether an advertising campaign falls within the scope of the directive.
Advertising campaigns that promote the purchase of unspecified prescription-only medicines in the form of price reductions, payments of an exact amount or of an undetermined cash reward, are not covered by the notion of advertising of medicinal products in the meaning of the Medicines Directive, since they solely influence the choice of the pharmacy from which to buy a medicinal product.
On the other hand, advertising campaigns that promote the purchase of unspecified prescription-only medicines by offering a voucher to be used for the subsequent purchase of non-prescription medicines or health and care products do encourage the purchase of non-prescription medicines and qualify as advertising of medicinal products. In addition, such advertising treats non-prescription medicinal products in the same way as other consumer products offered by a pharmacy and may encourage the irrational and excessive use of non-prescription medicines, which is prohibited by the Medicines Directive.