Pharmacies must not lure consumers into taking their prescriptions from them instead of from the competition by means of a sweepstakes. The Federal Court of Justice (BGH) decided after a lawsuit by the North Rhine Chamber of Pharmacists against the Dutch mail-order pharmacy DocMorris. The verdict from November was published in Karlsruhe on Thursday. (Az. I ZR 214/18)
In March 2015, DocMorris advertised a nationwide flyer for a “big competition” – main prize: an e-bike for 2,500 euros. “Send in the recipe now and win!” was the request. There should be an electric toothbrush for places two to ten. In 2018, the Frankfurt Higher Regional Court (OLG) prohibited DocMorris from holding such a competition again.
Unlike the Chamber of Pharmacists, the judges did not see the danger that someone could be prescribed a drug that they do not need – just to have a chance at the prices. However, it cannot be ruled out that a patient will order online “without considering that purchasing the drug from a stationary pharmacy would be more in line with his personal needs”. So there is only the possibility to get unsolicited advice – for example about interactions with other medicines.
The top civil judges of the BGH see it the same way. A doctor prescribed the drug. “However, this does not mean that a second unsolicited consultation with a pharmacist is not necessary in any case.” The Karlsruhe judges initially submitted the case to the European Court of Justice (ECJ). According to its information, only the advertising for a specific medicinal product is regulated at EU level. This was about advertising the entire range of a pharmacy. However, according to the ECJ, national bans may also go further.
The ECJ and BGH also do not see the free movement of goods as being impaired. The German ban on sweepstakes not only applies to online providers, but also to conventional pharmacies. The case now only has to be heard again in Frankfurt because of a marginal aspect. DocMorris is inferior in the important points.