In its judgement of 23 September 2022 (Case No.: 25 O 22/22), the Regional Court of Dortmund prohibited the advertising of a homeopathic medicine in which a promise of effectiveness against cold symptoms was advertised. The court ruled that the advertising would be misleading and therefore inadmissible, as the statements made falsely gave the impression that success could be expected with certainty.
The plaintiff is an association registered under Section 4 para. 1 German Injunction Act („UKlaG“). The defendant is a manufacturer of medicinal products and medical devices and sells, among other things, a homeopathic medicinal product for the treatment of colds. The defendant advertised this product on its website with the promise that the product works quickly and reliably against cold symptoms and that there is a clear improvement in all cold symptoms after taking the product. The medicine also enables the body itself to fight the infection even more effectively and quickly, which is an advantage particularly in comparison to chemically synthesised medicines. The defendant based its advertising claims on a "large-scale user study with more than 1,000 patients", in which the good efficacy and tolerability of the drug was confirmed. However, the study carried out was only a observational study carried out by pharmacies. The plaintiff was of the opinion that the advertising claims made were misleading.
In its judgement issued on 23 September 2023, the Regional Court of Dortmund ruled in favour of the plaintiff and classified the defendant's advertising claims as misleading pursuant to Sec. 2 para. 1 s. 1 in conjunction with Sec. 3, 11 German Drug Advertising Act („HWG“).
The statement that the medicine has a "reliable" effect would give the average consumer the impression that a safe treatment success could be expected and that a reduction in cold symptoms would always occur in every patient. This would be a violation of Sec. 3 s. 2 no. 2a HWG, whereby this provision takes into account the fact that treatment failure can always occur in each individual patient due to individual circumstances and success may therefore not be promised in general.
The statement that "all" cold symptoms would show an improvement in the course of the illness also would give the impression that success is to be expected with certainty. This would suggest to the average consumer that the medicine is effective for all cold symptoms without exception. The statement that the good efficacy and tolerability of the medicine was confirmed in an observational study carried out by pharmacies would also be inadmissible, according to the Regional Court of Dortmund. This statement would be understood by the consumers to mean that the medicine was well tolerated and that no harmful effects would occur if the medicine was used as intended or for a longer period of time. This would constitute a violation of Sec. 3 sentence 2 no. 2b HWG, especially as the package leaflet already expressly refers to possible side effects of the medicinal product.
The court also considered the advertising statement that the body itself could fight the infection even more effectively and quickly, which was an advantage particularly in comparison to chemically synthesised medicinal products, to be a violation of Sec. 11 para. 2 HWG. According to this provision, it is not permitted to advertise with claims that suggest that the effect of a medicinal product is equivalent to another medicinal product or superior to another treatment. However, the defendant expressly stated in the contested wording that the advertised product had a decisive advantage over many chemically-synthesised medicinal products, which would be inadmissible, according to the Regional Court of Dortmund.
Co-Author: My An Cao
