The intersection of pharmaceutical advertising, consumer protection, and internal market freedoms remains a complex legal battleground within the EU. In Apothekerkammer Nordrhein v. DocMorris NV (C-517/23), the Court of Justice of the European Union (CJEU) revisited the meaning of ‘advertising of medicinal products’, clarifying how far national restrictions on pharmaceutical advertisements can go under EU pharmaceutical law and internal market principles.

Background: a long battle over pharmacy ads

The dispute originated in Germany, where the Apothekerkammer Nordrhein association challenged several advertising campaigns of DocMorris NV, a Dutch mail-order pharmacy. After the German courts had initially prohibited these advertising campaigns, four of the five injunctions were revoked following a 2016 CJEU ruling (C-148/15, Deutsche Parkinson Vereinigung), leading DocMorris to sue for damages. The Düsseldorf Higher Regional Court ruled in DocMorris’ favour on appeal, awarding approximately 18.5 million EUR in damages, which the association then appealed to the Federal Court of Justice.

The Federal Court of Justice referred several questions to the CJEU, which can essentially be summarised as follows:

  1. Does advertising for the purchase of prescription medicines from a pharmacy’s entire product range constitute ‘advertising of medicinal products’?
  2. If so, does EU law forbid a ban on advertising that promotes buying unspecified prescription medicines through vouchers offering a fixed sum or percentage discount on future purchases of, for example, over the counter medicines?

1. The intent determines whether advertising for the purchase of prescription medicines from a pharmacy’s entire product range constitutes ‘advertising of medicinal products’

In response to the first question, the CJEU reaffirmed that not all pharmacy advertising qualifies as ‘advertising of medicinal products’ under Article 86(1) of Directive 2001/83/EC on medicinal products for human use (“Community Code”), and that the key distinction lies in the intent:

  • Advertising meant to promote the prescription, supply, sale, or consumption of medicinal products (even if not specified) is considered as ‘advertising of medicinal products’. For DocMorris’ advertising campaigns, the Court considered that this applied to:
  • campaigns providing for a referral scheme, under which a friend of a DocMorris customer could send in a medical prescription, the customer would then receive a voucher for a stay in a hotel or an offer to join the German automobile club at a reduced price, and the friend would receive a voucher to order over the counter medicines (OTCs) or health and care product;
  • campaigns offering DocMorris’ customers, in return for sending in a medical prescription, vouchers to be used for the subsequent purchase of OTCs or health and care products.

The Court considered that these campaigns encouraged the purchase of OTCs. Since OTCs do not require a prescription, recipients of the vouchers might be motivated by the financial benefit and use them to buy such products at a discount. The Court added that even if the vouchers could also be used to buy health and care items, it remained ‘advertising of medicinal products’.

  • Advertising seeking only to influence the patient’s choice of which pharmacy to buy medicinal products from, is not considered as ‘advertising of medicinal products’. Regarding DocMorris’ advertising campaigns, the Court considered that this applied to:
  • campaigns offering DocMorris’ customers, in return for sending in their medical prescription and participating in a medication check, a financial reward between 2.50 EUR and 20 EUR per prescription. The Court considered that this only concerned the choice of pharmacy;
  • campaigns consisting of a price reduction or payment with immediate effect.

The Court considered that these campaigns only sought to influence the patient’s choice of which pharmacy to buy from. When a patient had already received a prescription, the only remaining choice was that of the pharmacy from which to buy the prescription medicine.

2. Germany’s ban on advertising campaigns offering financial awards is justifiable

Although the CJEU had already answered the first question under Article 86(1) of the Community Code, it also assessed whether Germany’s ban on advertising campaigns offering financial rewards (2.50 EUR – 20 EUR) complied with other EU laws, particularly Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) and Directive 2000/31/EC on electronic commerce (“E-Commerce Directive”):

  • Under Article 34 TFEU, the Court held that Germany’s ban qualified as a quantitative restriction, but was justifiable as it protected consumers from misleading price incentives:
  • Firstly, the Court considered that it was a quantitative restriction because the German provision in question regulated ‘selling arrangements’ under the Keck and Mithouard line of case law, and because such arrangements fell outside Article 34 TFEU only if they applied equally to all traders and affected domestic and imported goods. While the German legislation applied uniformly to all pharmacies selling in Germany, the Court noted that price competition was more crucial for mail-order pharmacies than for traditional ones. A campaign offering customers financial rewards fostered price competition, and banning such advertising impacted foreign pharmacies more than domestic ones.
  • However, under the rule of reason, such a restriction is justifiable if it serves a public interest and is proportionate. Although subject to verification by the referring court, the Court accepted that the ban sought to protect consumers, particularly preventing them from overestimating rewards. Since the advertising campaign set a reward range without explaining its calculation, even an informed consumer could not determine the exact amount, as a result of which the Court considered that the ban was proportionate with the objective pursued. Therefore, Article 34 TFEU did not preclude Germany’s ban.
  • Under the E-Commerce Directive, the Court reached a similar conclusion, as it held that Germany’s ban restricted a foreign pharmacy’s ability to reach German customers and promote online sales, but was again justifiable:
  • Article 85c(1) of the E-Commerce Directive requires Member States to impose conditions on distance sales of medicinal products via ‘information society services’, but still allows national bans on selling prescription medicines this way. Since Germany was allowing such sales, it could not restrict the free movement of such ‘information society services’ from another Member State, under Article 3(2) of the E-Commerce Directive. The Court acknowledged that banning an advertising campaign would restrict a foreign pharmacy’s ability to reach German customers and promote online sales.
  • However, under Article 3(4)(a) of the E-Commerce Directive, Member States could justify such restrictions if the measures were necessary for public policy, health, security, or consumer protection, target a real or serious risk, and are proportionate. The Court effectively relied on its earlier assessment under Article 34 TFEU to conclude that Article 3(4)(a) of the E-Commerce Directive must be interpreted as not precluding the German prohibition at issue.

3. EU law does not forbid a national ban on advertising that promotes the purchase of unspecified prescription medicines through promotional vouchers

The CJEU held first that, although these advertising campaigns were directed at buying prescription medicines, they only promoted the consumption of OTCs and were therefore not caught by Article 88(1)(a) of the Community Code, which prohibits prescription medicines’ advertising to the general public. However, this did not mean that they were exempt from scrutiny. The Court stressed that Member States must still prohibit OTC advertising directed at the general public from including material that is of such a nature as to promote the irrational use of such medicinal products. As held in EUROAPTIEKA (C‑530/20), advertising that distracts the consumer from an objective evaluation of the need to take such medicine encourages the irrational and excessive use of that medicinal product.

On that basis, the Court assessed whether the advertising at issue encouraged such irrational and excessive use. It found that the vouchers at issue allowed consumers to buy a range of products, including OTCs, at a discount, treating them like other consumer goods in the pharmacy’s offering. This could lead to irrational use of OTCs (as also held in EUROAPTIEKA) by arguably masking their unique therapeutic nature and distracting consumers from properly assessing their need. Thus, the Court concluded that Article 87(3) of the Community Code does not preclude national legislation prohibiting advertising that promotes the purchase of unspecified prescription medicines through promotional vouchers.

Conclusion

This new DocMorris ruling reaffirms that pharmaceutical advertising sits at the crossroads of EU law and national regulation, requiring a delicate balance between market freedoms and consumer protection. While Member States may regulate pharmaceutical advertising that falls outside the definition of ‘advertising of medicinal products’, such restrictions must still comply with internal market principles. The judgment also provides clarifications on what qualifies as the ‘advertising of medicinal products’ and reinforces that promotional campaigns may not obscure the therapeutic nature of medicines or encourage irrational use.

ALTIUS’ Life Sciences team regularly advises pharmaceutical companies about the advertising of their medicinal products, both to the general public and healthcare practitioners. If you would like further information regarding this topic, then please contact Kirian Claeyé ([email protected]) or Bart Junior Bollen ([email protected]).