The LG Bielefeld had already decided and condemned the manufacturer to refrain from advertising in this way. The Hamm Higher Regional Court had changed the LG’s ruling and dismissed the consumer advocates’ lawsuit. The BGH overturned this decision shortly before Christmas (judgment of December 21, 2023 – I ZR 24/23).
The crux of the decision is the interpretation of a passage in the Medicines Advertising Act (Section A No. 1 of the appendix to § 12 HWG). § 12 HWG prohibits advertising for medicines that claim to be able to detect, prevent, eliminate or alleviate certain diseases listed in an appendix. The part of the appendix relevant here refers to the Infection Protection Act of July 20, 2000 for a more precise definition. The Higher Regional Court had derived a static reference from the wording and argued that neither Covid-19 nor Sars-CoV-2 was mentioned in the version from 2000 -Viruses are mentioned, so that the statements cannot be banned and advertising cannot be omitted.
However, the BGH has now made it clear that this is a dynamic reference to the current version of the Infection Protection Act. The wording does not indicate this classification, but both an examination of the history of its origins and an interpretation according to the objective meaning and purpose of the law speak for a dynamic reference. Consequently, statements about a protective function related to Corona should not be advertised.
on BGH, judgment of December 21, 2023 – I ZR 24/23
Editorial team beck-aktuell, ew, March 1, 2024 (dpa).
Related Links
From the beck-online database
Wachsmuth, The jurisprudence of the lower courts on the law of unfair competition XXIV, GRUR-RR 2024, 45
Hobusch/Ochs, overview of case law on medical device law and related areas 2022/2023, MedR 2023, 888
OLG Hamm, admissibility of health-related advertising (“corona prophylaxis”) for a mouthwash solution under competition law, MPR 2023, 185 (previous instance)
LG Bielefeld, Unfair advertising claims for a medical product with claimed effects on the coronavirus (mouthwash solution against Corona), PharmR 2022, 641 (First instance)