Co-Author: Cao, My Anh
A recent decision of the Higher Regional Court of Hamm dated 9 February 2023 (Ref.: 4 U 144/22) concerns an advertisement for mouth rinses with COVID-19 reference and the interesting question of whether Section 12 HWG applies. In the result, this question is answered in the negative.
The plaintiff is an association registered under Section 4 UklaG. The defendant is a pharmaceutical company and manufacturer of a mouth rinsing solution, which advertised the medical product with a promise of effectiveness against COVID-19 on its website. The Regional Court prohibited the health-related advertising for the mouth rinse solution on the grounds that the impugned advertising statements violated Section 12 para. 1 sentence 1 no. 2 HWG in conjunction with Section A no. 1 of the Annex to Section 12 HWG. The defendant appealed and argued that the Regional Court had wrongly assumed that COVID-19 as a disease and SARS-CoV-2 as a pathogen fell under the prohibited list of the Annex to Section 12 HWG.
The Higher Regional Court of Hamm ruled on 9 February 2023 (Ref.: 4 U 144/22) that the Regional Court had wrongly classified COVID-19 as a notifiable disease. There was no violation of Section 12 para. 1 sentence 1 no. 2 HWG in conjunction with Section A no. 1 of the Annex to Section 12 HWG. The wording of Section A no. 1 of the Annex to Section 12 HWG was to be interpreted as referring not dynamically to the version in force, but statically to the version of the Infection Protection Act in force at the time. The provision expressly referred to the Infection Protection Act of 20 July 2000 (Federal Law Gazette I p. 1045) and did not contain an addition such as "in the version applicable at the time". According to Section 6 of the Infection Protection Act (lfSG) in the version of 20 July 2000, COVID-19 was not listed in the catalogue as a notifiable disease and SARS-CoV-2 viruses were not listed as notifiable pathogens according to Section 7 lfSG. The Higher Regional Court Hamm also rejected a violation of Section 12 para. 1 sentence 1 no. 2 HWG in conjunction with Section A no. 1 of the Annex to Section 12 HWG with regard to the catch-all provision of Section 6 para. 1 no. 5 lfSG. This provision was intended to ensure that all communicable diseases that pose a particular risk to the population, but which may still be at an early stage, are reported. However, this obligation to report was ultimately based on the suspicion of a potential threat and did not automatically trigger a ban on advertising. The HWG is intended to protect individuals from self-medication influenced by advertising and an absolute ban on advertising would also be contrary to the principle of certainty. The reference in Section A No. 1 of the Annex to Section 12 HWG was therefore to be interpreted restrictively and did consequently not refer to the catch-all provision of Section 6 para. 1 no. 5 IfSG, but only to the enumerated diseases or pathogens of Sections 6 and 7 IfSG in the version of 20 July 2000.
