BGH – Giving away pharmacy vouchers when filling prescriptions violates competition law
Pharmacies are not allowed to give their customers small gifts when filling their prescription. The Bundesgerichtshof (BGH), Germany”s Federal Supreme Court, has ruled that this is in breach of resale price maintenance regulations for medicinal products.
We at the commercial law firm GRP Rainer Rechtsanwälte note that Germany has resale price maintenance regulations in place for prescription drugs to ensure uniform resale prices and prevent competition. In two judgments from June 6, 2019, the Bundesgerichtshof held that these price maintenance regulations must not be circumvented by giving away vouchers of relatively low value, as this is in breach of competition law (Az.: I ZR 206/17 and I ZR 60/18).
In one of the cases, customers were given a “Brötchen-Gutschein”, i.e. a bread roll voucher, for a neighboring bakery when having their prescriptions filled. In the other case, customers received a one-euro voucher from the pharmacy that they could redeem with their next purchase. Prescription drugs were explicitly excluded from the promotion. In both cases, actions were brought against the pharmacies by a competition association arguing that they were in breach of competition law due to the vouchers.
After the courts of appeal arrived at different rulings, the BGH subsequently granted both actions. The Court”s 1st Civil Panel, whose jurisdiction includes hearing claims arising under Germany”s unfair competition act (Gesetz gegen den unlauteren Wettbewerb, (UWG)), ruled that competition law prohibits giving away low-value promotional gifts to customers, such as a bread roll voucher or one-euro voucher, when filling their prescriptions for medicinal products that require a prescription, since this breaches resale price maintenance regulations.
The Court went on to cite the German law on advertising for health-related products and services, the Heilmittelwerbegesetz (HWG), ruling that gifts or any other form of promotional giveaways are only permissible in exceptional circumstances expressly provided for in law. This general prohibition on this form of advertising was said to represent a rule governing market behavior as defined in the UWG. The BGH held that consumers ought not to be materially influenced by the prospect of promotional gifts and that violating this rule is likely to appreciably harm the interests of market operators. The Court noted that this applies to low-value promotional gifts as well. It held that in amending the HWG, the legislature”s intention was to prevent unwelcome price competition between pharmacies. The BGH concluded that the clear statutory prohibition on any form of promotional gift in connection with prescription drugs must not be circumvented on the basis that it has no appreciable effect and thus is not deemed to be anti-competitive; resale price maintenance must be strictly adhered to.
Lawyers experienced in competition law can offer advice.
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