Decision of the Frankfurt am Main Regional Court on the advertising claim “does not cause drowsiness”
The Regional Court of Frankfurt am Main addressed the competition law admissibility of an advertising claim for an allergy medication. The case concerned the promotion of a drug with the statement that it “does not cause drowsiness.” According to the court’s assessment, this claim was likely to mislead the relevant consumer groups about a significant product feature. The basis for the report is the original article at: https://urteile.news/LG-Frankfurt-am-Main_2-06-O-13526_Werbung-fuer-ein-Allergiemittel-mit-der-Aussage-macht-nicht-muede-ist-irrefuehrend~N35965.
Standard for misleading information in the health and pharmaceutical sector
Increased requirements for statements about effects and side effects
Advertising for pharmaceuticals is subject to strict regulations. Statements about effects, tolerability, or side effects are regularly particularly relevant for the purchasing and usage decision. According to the court’s legal opinion, a higher standard must be applied to health-related claims because consumers generally attribute greater weight to such information.
Understanding of the targeted consumers
In the dispute, the issue was how average consumers understand the phrase “does not cause drowsiness.” The court focused on the fact that such a claim is typically understood as an assurance that drowsiness as a side effect does not occur or is practically excluded. This gives the statement the character of a clear, absolute product claim.
Court’s core statement: “does not cause drowsiness” as an incorrect blanket assertion
Side effect risk and advertising message
According to the court’s findings, the challenged advertisement did not align with the actual risks. If a product does not certainly exclude drowsiness, a promotional exaggeration suggesting otherwise can be considered misleading. From the court’s perspective, the decisive factor was that the advertising claim suggested reliable freedom from side effects, which was not substantiated in this manner.
Relevance for business decision-making
The court deemed the information significant because the expectation that an antihistamine does not cause drowsiness can significantly influence product selection. Especially in everyday life, in the workplace, or on the road, the assumption of no drowsiness can be decisive in choosing a particular product. Against this background, the statement gained competitive relevance.
Classification in the law of unfair competition
Misleading prohibition under the UWG
The legal assessment relates to the prohibition of misleading conduct under the Act Against Unfair Competition (UWG). Thus, business practices that are likely to create a false impression among the addressed recipients are impermissible. In pharmaceutical marketing, this particularly concerns claims that portray safety or freedom from side effects in a way that goes beyond established knowledge.
Distinction between permissible advertising and impermissible simplification
Advertising may be sharp, but it must not turn into a statement that is understood as a factual claim and inaccurately represents the actual risk situation. According to the considerations of the Frankfurt am Main LG, the formulation “does not cause drowsiness” crossed this line because, from the consumers’ perspective, it is seen not merely as promotional boasting but as a definite property assurance.
Significance for companies in the marketing of health-related products
Content of slogans and short claims
The decision makes clear that short, striking advertising phrases in the sensitive health market are regularly judged by how they are understood in the specific context. Especially briefly phrased claims can convey the impression of unrestricted validity to the audience. This can become legally relevant if actual limitations exist.
Risks in the interplay of product information and advertising
Even if product information (e.g., notices about possible side effects) is available elsewhere, a central advertising message is independently measured by whether it is accurate and clear in itself. According to the court’s perspective, a blanket core statement cannot be easily neutralized by appearing differentiated information elsewhere.
Final remark
The decision of the Frankfurt am Main Regional Court shows that the formulation of advertising claims in the pharmaceutical sector is significant not only economically but also under the law of unfair competition. Companies that advertise or sell health-related products frequently face the question of how to communicate claims about performance and tolerability in a legally secure manner. For a deeper classification in the specific business context, a legal consultation on competition law with MTR Legal Attorneys may be considered.
