Medical Cannabis Platforms Breach Advertising Ban

The Case at Stake: The defendant operated an online portal that allowed users to book appointments with physicians for treatment with cannabis for medical purposes. The portal set out the complaints and conditions for which a cannabis treatment could be helpful and, via a dedicated button, enabled users to send treatment requests to physicians cooperating with the defendant on a fee basis. The defendant formed part of a corporate group covering almost the entire cannabis value chain, including a pharmaceutical wholesaler licensed to import and trade in medical cannabis and a sister company operating a marketplace for mail-order pharmacies. The Centre for Protection against Unfair Competition (“Wettbewerbszentrale”), a qualified trade association, regarded these presentations as unlawful public advertising for prescription-only medicinal products and sought an injunction. While the Frankfurt am Main Regional Court dismissed the claim, the Frankfurt am Main Higher Regional Court granted the injunction. With its appeal on points of law, the defendant sought reinstatement of the first-instance judgment.

The Decision: The German Federal Court of Justice (BGH, judgement of 26 March 2026 – I ZR 74/25) dismissed the appeal. It confirmed that Sec. 10 para. 1 of the German Healthcare Advertising Act (HWG) – a market-conduct rule within the meaning of Sec. 3a of the German Act Against Unfair Competition (UWG) – prohibits public, consumer-facing advertising for prescription-only medicinal products in order to prevent self-medication and to counter the risk of patients pressuring their doctors into a particular prescription. Although the separate advertising ban formerly contained in Sec. 14 para. 5 of the German Narcotics Act (BtMG) ceased to apply to medical cannabis on 1 April 2024, following its removal from the Narcotics Act under the Cannabis Act and the new German Medical Cannabis Act (MedCanG), Sec. 10 para. 1 HWG continues to apply, and cannabis for medical purposes remains a prescription-only medicinal product under Sec. 3 para. 1 sentence 1 MedCanG. The Federal Court held that the presentations were product-related even though no specific preparation or manufacturer was named: advertising for an entire class of prescription-only medicines used to treat the same conditions can satisfy the product-reference requirement, and there is no convincing reason to permit public advertising precisely where it covers a particularly large number of medicinal products. The presentations were also designed to promote sales, because the defendant did not confine itself to neutral information about treatment options but one-sidedly recommended cannabis therapy for the listed complaints and steered users towards requesting a prescription from the cooperating physicians; the group’s broader economic interest in distributing cannabis through its sister company’s mail-order marketplace reinforced this assessment. Decisively, the fact that the prescribing decision lies exclusively with the physicians did not preclude a finding of unlawful advertising. The Court left open whether the conduct also amounted to “advertising for medicinal products” under Art. 86 para. 1 of Directive 2001/83/EC, since it was in any event such advertising under Sec. 1 para. 1 no. 1 and Sec. 10 para. 1 German HWG; it likewise saw no need for a referral to the CJEU.

This is important for operators of digital health and telemedicine platforms:

The removal of medical cannabis from the German Narcotics Act (BtMG) has not relaxed the advertising regime: the prohibition of public advertising for prescription-only medicinal products under Sec. 10 para. 1 German HWG applies in full. The decisive line runs between permissible patient information and unlawful advertising – neutral and balanced information about a treatment option, including its contraindications and risks, remains lawful, whereas singling out and praising a particular therapy without a balanced presentation of its limits, combined with a direct route to request a prescription from named cooperating physicians, constitutes prohibited public advertising. The product-reference requirement is construed broadly: advertising a whole class of prescription-only medicines tied to specific indications can suffice, and neither the absence of a named product nor the fact that only a physician may prescribe offers a safe harbour. 

Where, as here, the platform operator is embedded in a group-wide distribution structure for the advertised medicines, the regulatory risk is heightened. The reasoning extends well beyond cannabis: telemedicine and platform models in areas such as ADHD, pain, lifestyle and weight-management treatments should carefully review their public-facing presentations and structure them as neutral patient information rather than indication-led promotion that funnels users towards a prescription request.