Is it sufficient if the mandatory drug information according to the German Drug Advertising Act is only listed at the very end of a website? No, ruled the Cologne Higher Regional Court.
A retailer offered medicinal products to consumers on its website. A competition association issued a warning to the retailer for a breach of the German Drug Advertising Act. The association accused the retailer of failing to provide the mandatory information under the Therapeutic Products Advertising Act (HWG) ("For risks and side effects, read the package leaflet and ask your doctor or pharmacist").
The competition association was of the opinion that the design of the website violated the aforementioned obligation under the German Drug Advertising Act. The mandatory information had not been assigned to the respective advertising for the medicinal product in accordance with the law.
Only after other information at the very end of the website was the mandatory information finally displayed, namely the name of the advertised medicines, their areas of application and the note "For risks and side effects, read the package leaflet and ask your doctor or pharmacist". According to the competition association, the consumer could not perceive the mandatory information in direct connection with the advertising.
The retailer was of the opinion that the presentation chosen on the website did not violate the legal regulations. It cannot be inferred from the provision that the mandatory information may not be (collected) at the end of the advertisement. Furthermore, it is harmless that the mandatory information only becomes perceptible by "scrolling down".
Court decision on mandatory information on medicinal products
The OLG Cologne (Urt. v. 13.03.2020, Ref. 6 U 201/19) ruled that the placement of the mandatory information at the very end of the website constituted a violation of the Therapeutic Products Advertising Act and at the same time of the Competition Law represents.
The mandatory pharmaceutical information, including the text "For risks and side effects, read the package leaflet and ask your doctor or pharmacist" should be clearly legible and clearly separated from the other advertising statements. The criterion of good legibility is based on easy perception of the mandatory information. Not only "good legibility" (sufficient font size etc.) is required. The overall perceptibility and thus also the position of the Mandatory drug information played a major role, according to the court.
The necessity of scrolling does not in itself make it more difficult to take note. The internet user is used to it. The possibility of perception is decisive. The mandatory information was not provided in a permissible manner if the user no longer expected any information that could be assigned to the product.
The consumer does not expect any further information on the respective medicinal product once he has taken note of the presentation for this medicinal product. In the present case, however, it was an extensively designed website. After the presentation of the corresponding medicinal product, further categories of information such as "frequently asked questions" or other information were presented in detail. The mandatory information was only displayed after the legal notice, the terms of use and the privacy policy.
Thus, there was no easy perception of the mandatory pharmaceutical information and therefore a breach of competition law, according to the court.
Conclusion
Mandatory information on medicinal products must be clearly recognizable to the user. This is not guaranteed if some additional content is included on the website after the advertisement for the product and the mandatory information is only displayed at the very end of the page, even after the legal notice, terms of use and privacy policy.
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