In its judgment of 26 March 2026 (ref. I ZR 74/25, the Federal Court of Justice (BGH) correctly held that the operator of an internet platform arranging treatments involving prescription cannabis medicines infringes the prohibition on advertising to the general public in Section 10(1) of the German Advertising Act (HWG) if it facilitates treatment enquiries to cooperating doctors by referring to the conditions treatable with medical cannabis. This was after the BGH carefully applied the established national and European case law on the advertising of medicinal products.
The defendant operated an online referral portal offering interested parties the opportunity to arrange appointments with registered doctors for ‘cannabis for medical purposes’ treatment. To this end, the referral platform provided information on conditions and illnesses for which treatment with medical cannabis might be helpful.
The Court of Appeal – a finding confirmed by the Federal Court of Justice – assessed the overall presentation in detail and found that the website contained content specifically aimed at bringing users together with the cannabis doctors cooperating with the defendant in order to press for the prescription of medical cannabis, thereby promoting the sale of such medicinal products. Notably, within the framework of the group’s overall business model, the defendant had an interest in the distribution of cannabis.
By specifying areas of application in addition to the active ingredient ‘medical cannabis’, the prescription-only medicines are further specified, so it is irrelevant that no specific products or manufacturers are named. Even an advertisement referring to an entire class of prescription medicines for the treatment of the same condition, and thus to unspecified medicines, may satisfy the required product reference (para. 24).
The Federal Court of Justice (BGH) correctly pointed out that the prohibition on public advertising of prescription medicines set out in Section 10(1) of the German Advertising of Medicines Act (HWG) aims to prevent consumers from being encouraged by advertising to obtain the advertised medicinal product for self-medication, thus bypassing the prescription requirement, or to take a prescribed medicinal product without consulting a doctor again. This is intended to prevent the misuse of medicinal products.
At the same time, the ban is intended to counteract the risk of consumers pressuring their doctor to prescribe the advertised medicinal product, thereby inducing the doctor to prescribe a different preparation to the one they initially preferred.
Since 1 April 2024, cannabis for medical purposes has been regulated by the Act on the Supply of Cannabis for Medical and Medical-Scientific Purposes (Medical Cannabis Act – MedCanG). It is a prescription-only medicine (Section 3(1) MedCanG; Annex 1 AMVV), as defined in Section 10(1) HWG.
As has been held in previous case law, it is not relevant in this respect that no specific medicinal product is named; rather, an indirect reference to the product is sufficient (see OLG Hamburg, ‘Pegasys’, GRUR-RR 2003, 352; OLG Frankfurt, ‘Liebe ist pink’, GRUR-RR 2013, 76; LG Hamburg, judgment of 4 August 2022, ref. 312 O 75/22; LG Munich I, final judgment of 3 March 2025, ref. 4 HK O 15458/24).
According to the defendant’s website, medical cannabis is said to be suitable for treating conditions such as chronic pain, migraines, depression, ADHD and sleep disorders. Advertising medicinal products within the meaning of Sections 1(1)(1) and 10(1) of the German Medicines Advertising Act (HWG) encompasses all statements related to the products designed to promote their sale.
Whether advertising is product-related must be assessed based on the overall presentation, specifically whether the promotion of specific or identifiable products is the primary focus. Content-related references, such as the description of an indication, may support this, and even advertising for a broad range of unspecified medicinal products may be product-related. Regarding this issue, the Federal Court of Justice (BGH) referred to current European Court of Justice (ECJ) case law in its judgments of 22 December 2022 (Case C-530/20, ‘Euroaptieka’) and 2 February 2023 (Case C-517/23, ‘Apothekerkammer Nordrhein’).
When interpreting these two ECJ judgements, the BGH correctly concluded that the dispute was not about consumers deciding to obtain cannabis that had already been prescribed for medical purposes. Rather, it was about doctors cooperating with the defendants deciding to prescribe such medicinal products, meaning that the website was specifically promoting demand for prescription medicines. Therefore, the information must be assessed in relation to the product.
Referring to the ‘Euroaptieka’ judgment of the ECJ, the BGH found that advertising an entire class of prescription medicines for the treatment of the same condition — and thus an unspecified medicine — could still have the necessary product-specific reference because it could contradict the objective of protecting public health pursued by the ban on advertising to the general public.
The BGH then addresses the question of whether this campaign should also be classified as advertising medicinal products under Article 86(1) of Directive 2001/83/EC, since the decision to prescribe rests solely with doctors in such cases.
The BGH convincingly argues that the ban on public advertising of prescription-only medicinal products in Article 88(1a) of the Directive would be rendered meaningless if advertising were ruled out solely because the medicinal product must be prescribed by a doctor. This suggests that, just like Section 10(1) of the HWG, the EU-law ban is also intended to counteract the risk of patients pressuring doctors to prescribe specific medicines, and covers advertising campaigns aimed at doing so.
However, a conclusive assessment was not required, as advertising medicinal products is not fully harmonised. The website breaches Section 10 of the HWG because it promotes the sale of cannabis for medical purposes. In particular, the present case did not provide information on the benefits of cannabis treatment and therapeutic options in an isolated and factually appropriate manner. Instead, specific information on cannabis treatment was provided, and users were able to submit treatment requests to doctors cooperating with the defendant. The defendant’s aim was clearly to encourage internet users to request medical cannabis prescriptions from these doctors.
The fact that the decision on prescription rests with doctors does not preclude a ban on public advertising under Section 10(1) of the German Health Promotion Act (HWG) under EU law.
This decision is worth reading as it sets out the characteristics that argue for and against product-related advertising in cases of indirect product reference.
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