In its appeal ruling of March 6, 2025 (Ref.: 6 U 74/24), the Higher Regional Court of Frankfurt am Main (OLG Frankfurt am Main) dealt with various issues relating to the advertising and prescription of medical cannabis.
The background to the appeal decision of the OLG Frankfurt am Main is a legal dispute between the Center for the Prevention of Unfair Competition (Wettbewerbszentrale) as the plaintiff and the defendant, a service provider and operating company that arranged medical treatments with medical cannabis via its website. As remuneration for the referral, the defendant and the doctors agreed on shares of between 60% and 79% of the gross medical fee. Furthermore, the defendant advertised on its website with statements such as “initial medical consultations on site or digitally” and “cannabis for medical purposes,” but did not distribute the medical cannabis itself. The plaintiff considered the contractual arrangements and the statements made by the defendant on its website – even before the cannabis laws (KCanG and MedCanG) came into force – to be anti-competitive and sent the defendant a warning letter in April 2023, which was unsuccessful. After the Regional Court of Frankfurt am Main had only partially upheld the action in its judgment of February 27, 2024 (Ref.: 3-08 O 540/23), the Higher Regional Court of Frankfurt am Main has now also ruled on the legal issues in dispute.
Brokerage fee for the referral of patients contrary to professional law, Section 31 para. 1 MBO-Ä
The Higher Regional Court of Frankfurt am Main concluded that a share of 60% to 79% of the gross medical fee for each individual patient, to which the defendant was entitled under the remuneration agreement, did not constitute an approximately equivalent consideration for the services contractually owed by it. Rather, this was to be seen – at least in part – as a hidden commission for the referral of patients via the portal operated by the defendant. By implementing the remuneration scheme, the defendant's cooperating physicians would be in breach of Section 31 para. 1 MBO-Ä and the prohibition contained therein on granting remuneration for the referral of patients. The defendant, who drafted the contract templates including the remuneration rules and made them available to potential cooperating physicians, is jointly responsible for these professional misconducts under the rules on instigation and participation in unfair competition law, or at least as an accomplice. Accordingly, the defendant and not only the physicians cooperating with it would also be acting in a manner contrary to competition.
Advertising ban for remote treatment, Section 9 para. 1 HWG
The OLG Frankfurt a.M. also classified the statements made on the defendant's website, “Initial medical consultations on site or digitally,” as inadmissible, as this constituted a violation of the advertising ban for remote treatment under Section 9 para. 1 HWG. The decisive factor here was the understanding of the advertising audience. In the court's opinion, a significant proportion of the average audience would understand the statement to mean that the initial medical consultation could, in principle, take place either on site or digitally. However, this would contradict Section 9 para. 1 HWG. The exception in Section 9 para. 2 HWG, according to which remote treatment is permissible if no personal doctor-patient contact is necessary according to generally accepted professional standards, did not apply either. For treatment with medical cannabis as a narcotic, however, an initial personal medical consultation was mandatory at the time of the advertising in question. Although initial personal medical treatment is no longer required by law, the court does not consider it apparent, even in view of today's professional standards, that personal medical contact is not necessary in principle when prescribing medical cannabis. In any case, the defendant had not sufficiently demonstrated this.
Advertising ban for prescription drugs under Section 10 para. 1 HWG
Most recently, the Higher Regional Court of Frankfurt am Main ruled that, insofar as the defendant advertises prescription medical cannabis on its website (e.g., with the statement “Cannabis for medical purposes” or "Your experts for natural treatment with medical cannabis at (...)"), this violates the prohibition on advertising prescription drugs under Section 10 para. 1 HWG. According to the court, based on the overall appearance of the advertisement, it cannot be assumed that the information provided is purely informative about prescription medical cannabis or that it is merely company advertising. Rather, it was inadmissible product or sales advertising for prescription drugs outside professional circles, aimed at influencing the demand decision of the target audience for medical cannabis. The court clarified that, for sales promotion within the meaning of Section 1 HWG, the mere dissemination of information aimed at promoting the prescription, dispensing, sale, or consumption of medicinal products is sufficient. In the court's opinion, these criteria were met by the statements made by the defendant. It was irrelevant that the defendant did not distribute the medical cannabis itself, as it was not necessary for a violation of Section 10 para. 1 HWG that the advertiser had a direct interest in the distribution of the advertised drug. Furthermore, it is irrelevant for a violation of Section 10 para. 1 HWG that the decision on prescription is not made by the defendant but by the cooperating doctors and that the advertising also refers to other products in addition to prescription drugs. Finally, the court emphasized that the incentive effect of the advertising in the case in question was particularly strong because, unlike in the case of a medicine that had already been prescribed, the defendant's advertising was aimed precisely at the upstream decision of consumers to choose and demand medical cannabis.
Conclusion
The ruling of the Higher Regional Court of Frankfurt am Main makes it clear that advertising statements relating to prescription-only medical cannabis must be measured against the same standards of therapeutic product advertising law as advertising statements relating to other prescription-only drugs. It can be assumed that courts will continue to rule strictly in this regard in the future for reasons of consumer protection, meaning that restraint is advised when advertising medical cannabis. The decision of the Higher Regional Court of Frankfurt am Main is not yet final; an appeal has been granted.
