Enlightening The Jungle: The German Rules on Advertising Pharmaceuticals

Abstract

The legal rules applying to advertising medicines in Germany resemble a jungle. While a Medical Products Advertising Act (hereafter the Act) has been put in place, which concentrates on rules regarding advertising pharmaceuticals, the Act does not show the entire picture. It is surrounded and complemented by provisions embedded in other sources of law. Moreover, the legal structure of the Act is complex as the distinction between rules on advertising to professional parties and rules on marketing to end consumers is not clear in the face of the structure of the Act. Finally, provisions set out in the Act are of course subject to interpretation by competent courts, including both domestic ones and the European Court of Justice. Recently, courts have increasingly been making decisions which, have a significant impact upon how to construe and apply key rules and legal concepts of the Act. This essay strives to outline the chief categories in the light of pertinent case law, focussing on recent case law and taking both the Act and complementing other sources of law into account – thereby hopefully enlightening “the legal jungle” to some extent.