In its ruling of November 6, 2025 (case no. I ZR 182/22), the Federal Court of Justice (BGH) further clarified the limits of voucher advertising for prescription medicines. Only immediate price reductions are permitted, but not vouchers, bonuses or non-cash benefits for subsequent purchases. Variable bonuses (“up to 20 euros per prescription”) are also inadmissible because they can influence consumers in an unobjective manner. According to the BGH, these advertising restrictions do not violate EU law as they serve to protect health. The European Court of Justice (ECJ) must now clarify whether the general ban on vouchers is permissible under European law.

Problem: vouchers, bonuses and EU mail-order pharmacies

Mail-order pharmacies – especially from other EU countries – have been advertising bonus campaigns for the redemption of prescriptions for years. At the heart of the matter is the question: Is it permissible to advertise with vouchers or bonuses when purchasing prescription drugs?

The specific case concerns a Dutch mail-order pharmacy that advertised cash bonuses, hotel vouchers and free ADAC memberships between 2012 and 2015. The North Rhine Chamber of Pharmacists considered this to be a violation of German fixed prices for prescription medicines and took legal action.

In 2016, the ECJ had already partially lifted the price maintenance for EU mail-order pharmacies in the “Deutsche Parkinson Vereinigung” decision. Based on this, the Dutch mail-order pharmacy claimed damages. The Düsseldorf Higher Regional Court (OLG) initially ruled in its favor – but the BGH intervened.

Classification: What the BGH has decided

Therapeutic Products Advertising Act (HWG) – briefly explained

The Therapeutic Products Advertising Act (HWG) regulates how medicines and medical services may be advertised. The aim is to prevent patients from being improperly influenced.

Section 7 para. 1 sentence 1 no. 2 letter a HWG is specifically relevant. This provision allows price discounts, but prohibits promotional gifts if they do not have a direct effect on the purchase.

Only direct discounts are permitted

The BGH clarifies:

• Only discounts or payments that immediately reduce the price of the prescription drug are permitted.
• The following are not permitted:
  • Vouchers for future purchases (e.g. 5 euro voucher for the next order),
  • variable premiums (“up to 20 euros per prescription”),
  • Benefits in kind such as hotel vouchers or memberships.

The reason: such benefits do not have a direct price-reducing effect, but are promotional gifts. Variable bonuses also leave open which actual advantage the customer receives – this is considered to be improper influencing.

No violation of EU law – from the perspective of the BGH

The BGH does not see these restrictions as a violation of EU law. National advertising bans are permissible if they are intended to protect health and avoid false incentives. The fact that foreign mail-order pharmacies could be more affected does not change this.

Procedural error by the OLG Düsseldorf

In addition, the BGH complained that the Düsseldorf Higher Regional Court had not sufficiently examined foreign law. According to Section 293 ZPO, courts must investigate foreign law ex officio. In this case, the OLG had relied on the information provided by the plaintiff – which was not sufficient.

Referral to the ECJ: The open question under European law

Despite the clear line taken by the BGH, the matter is not closed. The BGH has referred questions to the ECJ for a preliminary ruling. The ECJ should clarify:

• whether a general ban on vouchers for prescription medicines is compatible with the free movement of goods (Art. 34 TFEU),
• and what leeway the Member States have to impose advertising restrictions for reasons of health protection.

The final word therefore lies at European level.