Facts of the Case
The defendant operates a platform for the distribution of medical cannabis. Its business model was designed to refer patients, via the platform’s website, to cooperating physicians, who would then prescribe medical cannabis through the platform. The Competition Center (“Wettbewerbszentrale”), which brought the action against this, objected that the platform’s website one-sidedly highlighted the benefits of cannabis treatment and thus constituted public advertising for a prescription drug that is prohibited under Section 10 para. 1 of the German Drug Advertising Act (HWG). The Higher Regional Court of Frankfurt am Main had already found a violation of Section 10 HWG in the lower instance of this proceeding, upholding the legal action (we reported). The Federal Court of Justice has now confirmed the decision of the Higher Regional Court of Frankfurt am Main in its latest ruling, making the following key statements:
Medical cannabis is a prescription-only medication
Since medical cannabis falls under the prescription-only status pursuant to the MedCanG (Section 3 para. 1 MedCanG), the BGH is of the opinion that it is also fully subject to the advertising ban under Section 10 para. 1 HWG. By contrast, the BGH expressly rejects any deviating classification—for example, with regard to the specific regulatory history of the active ingredient or its recently liberalized marketability.
Product reference is not required
Furthermore, in the BGH’s view, the advertising ban does not apply only when specific products are advertised. The promotional highlighting of an entire category of medicinal products is sufficient to satisfy the elements of Section 10 para. 1 HWG. The assessment depends solely on whether the presentation gives the target audience the impression that it is advertising a prescription-only treatment. Conversely, it is irrelevant whether a specific preparation is named.
Medical treatment sovereignty does not exempt from violations
The fact that the decision to prescribe lies solely with the physician does not exempt the platform from liability. The BGH points out that a one-sided, favorable portrayal of cannabis treatments creates a concrete risk that patients (influenced by the platform) will indirectly influence their physicians’ prescribing behavior. In the BGH’s view, the formal involvement of the physician does not break this causal link.
Classification and Practical Implications
The ruling sets a strict standard: Digital health platforms that promote or facilitate access to prescription cannabis fall within the scope of the HWG—regardless of whether they view themselves as mere information or intermediary service providers. The economic relationship between platform operators and prescribing physicians is likely to play an additional role for the assessment under competition law.
In practice, this means specifically:
- Advertising is not permitted. Any presentation of prescription substances to consumers that is designed in an advertising manner is incompatible with Section 10 para. 1 of the HWG, regardless of the specific structure of the business model.
- Balanced factual information remains permissible. Factual, neutral information about treatment options may remain permissible in individual cases. However, as soon as a presentation takes on the character of sales promotion directed at consumers, a violation of the HWG is indicated. The line is blurred and must be carefully examined on a case-by-case basis.
- Category advertising is prohibited. Public advertising for medical cannabis is also prohibited even when entire product categories are advertised. The BGH emphasised that merely promoting an entire product category—without reference to a specific product—already fulfills the elements of Section 10 para. 1 of the HWG.
Conclusion
The BGH’s recent decision is in line with the current legislative trend toward further tightening regulatory requirements in the cannabis sector and is likely to pose challenges to the business models of numerous platforms in their current form. However, the ruling does not apply solely to the specific business model at issue, but rather sets a general standard for all platforms operating in the field of prescription drugs. Operators of comparable portals should therefore use this ruling as an opportunity to review their communications and websites for compliance with the provisions of the HWG.
