In its ruling of June 22, 2017, the Higher Regional Court of Naumburg decided that online pharmacies may not generally exclude a consumer’s right of withdrawal when ordering medication. In the ruling, the court declared a corresponding GTC clause of the online pharmacy iPill.de to be unlawful.
Online pharmacy: Terms and conditions clause generally excludes right of withdrawal for medicines
The online pharmacy used a general terms and conditions clause to generally exclude the right of withdrawal for consumers of pharmacy-only and prescription medicines. The general exclusion of the right of withdrawal was justified by the perishable nature of the medication.
Consumer association: violation of the regulations on distance selling
The “Federation of German Consumer Organizations” (vzbv) saw this provision as a clear violation of the regulations on revocation in distance selling transactions. It was an unjustified restriction of the statutory right of withdrawal, which disadvantaged the consumer to a not inconsiderable extent.
OLG Naumburg: Medicines are not “quickly” perishable
In principle, consumers are entitled to a right of withdrawal – with a few exceptions – for online purchase contracts within the first 14 days (Sections 312g, 355 BGB). However, the exclusion of the right of withdrawal for medicines is not explicitly regulated in the law.
However, an exclusion of the right of withdrawal is only possible, for example, if the goods ordered online are perishable or their expiry date would be quickly exceeded.
However, according to the OLG Naumburg, this is not generally the case with medicines. Paracetamol – a painkiller – for example, has a shelf life of at least two years and is therefore not perishable. The same applies to many other medicines offered in online pharmacies. A general exclusion of the right of withdrawal for all medicines available in the online pharmacy due to the short shelf life is therefore inadmissible.
Insufficient instruction in the event of medication misuse
In addition to the incorrect general terms and conditions, the online pharmacy iPill.de was also not very careful with the instructions in the event of suspected misuse of medication by an ordering party.
During a test purchase of 13 packs of the painkiller Paracetamol by a vzbv employee, he only had to confirm the order with a simple “ok” before sending it. In doing so, he assured the online pharmacy that he had been informed about the “high pharmaceutical concerns of regularly taking more than three packs of laxatives or painkillers”.
Misuse of medication: formulaic instructions are not sufficient
In the opinion of the vzbv, however, the online pharmacy did not adequately address the possible misuse of medication during the test order. The OLG Naumburg then confirmed this in its ruling. The online pharmacy should have been aware of the high potential for misuse when ordering more than 25 times the daily dose of painkillers and then made specific inquiries with the customer. In the event of insufficient justification, the online pharmacy would then also have been obliged to refuse to supply the medication.