Unfair Competition Law – Protection and compliance in pharmaceutical marketing

What is the Unfair Competition Law?

The Unfair Competition Law (in German “Gesetz gegen den unlauteren Wettbewerb, UWG”) is a central set of rules in German commercial law that prevents unfair business practices and ensures fair competitive behavior. It serves to prevent distortions of competition and protect consumers, companies and market integrity. The UWG is particularly relevant in the pharmaceutical and healthcare industry, as it regulates advertising and marketing practices in order to prevent misleading, aggressive or unfair methods.

For pharmaceutical companies, the UWG means that communication and advertising measures are subject to strict regulations. Advertising for medicinal products, medical devices or therapeutic procedures may not contain false promises or exert inappropriate pressure on healthcare professionals or patients. Violations of the UWG can result in severe penalties and warnings under competition law.

The most important Unfair Competition Law regulations for the pharmaceutical and healthcare industry

The UWG contains various clauses that are particularly important for pharmaceutical marketing. The most important regulations include:

• Misleading advertising (Section 5 UWG): Advertising for medicinal products or medical devices may not contain false or misleading statements. This includes exaggerated healing promises or the concealment of side effects.
• Comparative advertising (§ 6 UWG): Comparisons with competing products are only permitted if they remain objective and factual. Unfair disparagement or unobjective claims about competitors are prohibited.
• Unreasonable harassment (§ 7 UWG): Direct advertising, in particular by telephone or email, requires prior consent. Unauthorized advertising calls or spam emails can result in high fines.
• Aggressive commercial acts (Section 4a UWG): Exerting pressure, coercion or psychological manipulation in order to force a sale or recommendation is not permitted.
• Blacklist of unfair commercial practices (Section 3 UWG): A fixed list of advertising and sales practices that are prohibited in all cases, e.g. untrue promises to win or false information on product availability.

Differentiation from the German Drug Advertising Act (HWG)

In addition to the UWG, the German Drug Advertising Act (HWG) exists for the pharmaceutical and healthcare sector, which sets out specific rules for the advertising of medicinal products and medical devices. In many aspects, the HWG goes beyond the UWG and sets additional restrictions:

• Strict requirements for end consumer advertising
• Special transparency obligations for scientific evidence
• Restrictions on the presentation of success stories or test results
• Special regulations for specialist advertising

Although the UWG and the HWG apply in parallel, pharmaceutical companies must ensure that their marketing strategies comply with both laws. A violation of the HWG can often also constitute a violation of the UWG.

Significance of the UWG for digital pharmaceutical marketing strategies

The increasing digitalization of Pharma-Marketing brings with it new challenges, particularly in the online sector. Social media marketing, content strategies and influencer cooperations must also comply with the UWG. Critical aspects here are:

• Native advertising & transparency obligations: Advertising must be clearly recognizable as such. Disguised advertising posts in blogs or social networks can be considered unfair.
• Google Ads and SEO strategies: Misleading or exaggerated keywords as well as ads that contain misinformation violate the UWG.
• Ratings and reviews: Fake or purchased customer reviews are prohibited and may result in legal consequences.
• Personalized advertising and data protection: Direct marketing measures via email or retargeting must be GDPR-compliant in order to avoid generating unfair competitive advantages.

Consequences of violating the Unfair Competition Law

Companies that violate the UWG must expect serious consequences. The sanctions include:

• Warning letters from competitors or consumer associations
• Injunctions with court injunctions
• Claims for damages by injured parties
• Fines or penalties, in particular for systematic breaches of the rules

To protect themselves from such risks, pharmaceutical companies should continuously review their marketing and sales strategies and work closely with legal experts.

Conclusion: The role of the Unfair Competition Law in Pharma-Marketing

The Unfair Competition Law is an essential guideline for responsible and legally compliant pharmaceutical marketing. Companies in the healthcare sector must ensure that their advertising measures are transparent, fair and compliant in order to avoid legal pitfalls.

In the digital marketing sector in particular, clear compliance guidelines are necessary to avoid violations. Close cooperation with lawyers and regular adaptation of the marketing strategy to new regulatory requirements are essential.