Prohibited advertising for homeopathic medicinal products featuring promise of success
The Oberlandesgericht (OLG) München [Higher Regional Court of Munich] has ruled that promoting a homeopathic medicinal product with a promise of success is prohibited and a violation of competition law.
For a homeopathic medicinal product to be approved, it is not necessary for its effectiveness to be proven with reference to scientific studies. We at the commercial law firm GRP Rainer Rechtsanwälte note that businesses are therefore not allowed to make promotional statements that effectively amount to a guarantee of recovery or at least give this impression. In its ruling May 4, 2017, the Oberlandesgericht München made it clear that this kind of advertising is misleading and constitutes a violation of competition law (Az.: 29 U 335/17).
In the instant case, a pharmaceutical company had promoted a homeopathic remedy for headaches with statements such as “bekämpft Kopfschmerzen zuverlässig” (reliably combats headaches) and “effektiv gegen Kopfschmerzen” (effective against headaches). The OLG München held that these statements were a violation of the Heilmittelwerbegesetz (HWG), the German act regulating the advertising of medicinal products, as well as the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s unfair competition act. The Court went on to say that these promotional statements gave the impression that recovery is a certainty. For this reason, the statements were said to be misleading.
The Court ruled that an explicit promise that recovery will be a success is not necessary for these statements to be misleading; it is enough for the statements to give consumers this impression. The OLG held that it is equally unnecessary for a plausible rate and success of recovery to have been promised for all conceivable symptoms. It is sufficient if it is advertised that it can be reliably expected to be successful as a rule.
Furthermore, the Court found that the promotional statement “ohne bekannte Neben- und Wechselwirkungen” (no known side effects or interactions) was also misleading to consumers, as it was said to be apparent from the package leaflet that symptoms could even get worse for a short time. As such, side effects were very much a possibility, which was pointed out in the instructions but not the advertising. The Court noted that while it is known that homeopathic medicinal products can lead even to a potential worsening initially, the advertising did not indicate that these were homeopathic remedies. As a result, consumers were said to have been misled. The OLG went on to also say that consumers trusted that this statement was backed up by scientific studies. Notwithstanding this, the Court noted that such studies are not required in the case of homeopathic remedies.
Competition violations can result in formal warnings, damages claims and injunction suits. Lawyers who are qualified in the field of competition law can assist businesses in fending off or enforcing claims.