INDUSTRIES, LIFE SCIENCES | The ECJ on advertising of medicinal products

On 27 February 2025, the European Court of Justice (ECJ) ruled in Case C-517/23 (Apothekerkammer Nordrhein v. DocMorrisNV) on the activity of advertising of medicinal products. The most relevant aspect of the decision is regarding the issuance of vouchers offered for the purchase of non-prescription medicines or health and care products. The ECJ was called to decide on the advertising initiatives relating to medicinal products for human use and their compatibility with Article 86(1) of Directive (CE) No. 83 of 6 November 2001. The advertising initiatives that the ECJ was called to review were the promotion of the purchase of unspecified prescription only medicinal products in the form of price reductions or payments of an exact amount, and the promotion of the purchase of medicinal products in the form of vouchers for the subsequent purchase of non-prescription medicinal products and health and care products.

On the first kind of promotion abovementioned, since it regards only the choice of the pharmacy from which a patient can purchases a prescription-only medicinal product, the ECJ finds that a campaign as such does not fall within the concept of “advertising of medicinal products” under the definition of Article 86(1) of Directive 2001/83. In fact, when a patient receives a medical prescription, the only choice that remains to be made is that of the pharmacy from which he or she will buy that medicinal product.

The Court, on the other hand, stated that the Article 86(1) applies to the form of advertising that offers the issuance of a voucher to be spent for the purchase of non-prescription medicinal products or health and care products. The ECJ found that this activity, carried out by the Dutch pharmacy, fell within the meaning of Article 86(1) of Directive 2001/83 because it entails a form of encouragement to purchase products which, although they do not require a doctor’s prescription, are nevertheless medicinal products. Excessive or reckless use of non-prescription medicines can harm public health: if medicines are taken unnecessarily or incorrectly, they can cause harm without the patient’s knowledge. Therefore, the Court deems it legitimate for Member States to prohibit this form of advertising.

Newsletter n. 105 – March 2025