Higher Regional Court of Hamburg: Differentiation between corporate advertising and sales advertising relevant under pharmaceutical law

Co-author: My Anh Cao

Although the judgement of the Hanseatic Higher Regional Court of Hamburg of 24 June 2021 (case reference: 3 U 98/20) is somewhat older, it will be briefly discussed due to its relevance for the advertising of internationally active pharmaceutical companies. It concerns, among other things, the international jurisdiction of the German courts for advertising that can be accessed on the internet and the question of the existence of sales advertising in business reports under pharmaceutical law.

The parties to the dispute were both active in the manufacture and distribution of medicinal products and are therefore competitors. They are also internationally active stock corporations. The defendant advertised its medicinal product in a press release and capital market information in both German and English as well as in an internet presentation. In the first instance, it was argued that the advertising was not aimed at domestic specialist circles, as it was only corporate advertising aimed at US investors and analysts.

On 24 June 2021, the Higher Regional Court of Hamburg ruled on the appeal lodged by the applicant. It found that German courts had international jurisdiction pursuant to Art. 7 No. 2 of Regulation 1215/2012 (Brussels I Regulation), as the challenged advertising distributed on the internet had the required domestic connection. The domestic connection required for Internet publications is given if the publications also have an effect in Germany as intended. The fact that the advertisement is published in English is also not an argument against this if the use of English-language information is common practice in the target market. The advertising in the annual reports with which corporations fulfill their disclosure obligations pursuant to Sec. 264, 289 HGB is not aimed exclusively at US investors, but globally at all interested parties as well as domestic investors and analysts. Annual reports that contain the company-specific situation and information on the production and performance area as well as forecast, research and development reports, irrespective of the naming of a medicinal product or the description of its area of application and the expected economic success, are generally to be regarded as company advertising and not as sales advertising relevant under therapeutic products advertising law. An investor's communication on the commercially planned development of a medicinal product launched on the market does not generally constitute sales advertising relevant under therapeutic products advertising law, as sales promotion is not the communication objective here. However, as soon as such investor relations measures are also used as an instrument for sales-related advertising messages, for example by describing the function and mode of action of the preparation awaiting authorization in such detail that this goes beyond the purpose of informing investors about the economic potential of the preparation, sales advertising under therapeutic product advertising law comes into consideration. Furthermore, the Hanseatic Higher Regional Court of Hamburg ruled that an indication in an asterisk reference to an advertising statement with clear content cannot turn it into the opposite. Although the asterisk reference is often still part of the eye-catcher, the public no longer expects an explanation to the contrary in the case of an unambiguous statement in the reference. This point plays a particularly important role in practice, as companies often add asterisk references to their advertising claims in order to eliminate any misleading statements. However, the judgement of the Hanseatic Higher Regional Court of Hamburg shows once again that an asterisk is not a "panacea".