In its ruling of October 26, 2015, the Oberverwaltungsgericht NRW (Higher Administrative Court of North Rhine-Westphalia) held that in-house organic seals on pharmaceuticals may constitute prohibited advertising (Az.: 13A 2597/14).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to a ruling of the Oberverwaltungsgericht Nordrhein-Westfalen, companies are not permitted to use their own organic seals on containers and packaging for pharmaceuticals. The Court stated that this kind of information is only acceptable if it relates directly to the use of the medicinal product and is important for the purposes of clarifying the health implications to consumers. Information of a promotional nature was said to be impermissible.
In the case in question, a company had made use of its own organic seal on a pharmaceutical product. The Verwaltungsgericht Köln (Administrative Court of Cologne) took the view that the rather imprecise information concerning the organic cultivation of the plant-based raw material used to produce the drug was not relevant to the use of the drug or for the purposes of informing consumers about the product’s health implications. The Court went on to say that the use of the organic seal was promotional in nature and was therefore prohibited.
The OVG NRW agreed with this finding, stating that use of the organic seal violated the ban on advertising. The fact that there was no further information regarding the basic material’s specific ecological properties was by itself sufficient to render the advertising impermissible. However, the Court also held that it was of a promotional nature because the product stood out from others thanks to the organic seal and thus had the potential to promote sales. This was also said to distract patients from the essential information pertaining to the drug. The OVG therefore refused the company’s application for leave to appeal.
Seals of approval represent quality markers for consumers and are thus also a key factor in advertising. Having said that, it is particularly important when it comes to pharmaceuticals and other medicinal products for producers to make sure that they comply with requirements and do not infringe competition law. A European directive prohibits the use of information of a promotional nature on the packaging of pharmaceuticals.
Anti-competitive behaviour can result in costly and time-consuming legal disputes as well as formal warnings and injunction suits. That is why it is essential to obtain competent legal advice from lawyers who are versed in the field of competition law if advertising measures come into the picture or other issues pertaining to competition law arise.