Is content marketing in pharmaceutical and healthcare advertising even legally possible? Don't HWG, UWG and other laws speak against it? One of the leading experts in pharmaceutical law, Peter von Czettritz, provides information and explains which legal pitfalls must be observed and avoided.
One of the leading pharmaceutical law experts, Peter von Czettritz, concludes in his expert opinion that although there are many legal hurdles to content marketing, content marketing can also be an interesting and fundamentally permissible marketing tool in the pharmaceutical industry.
Statement on the topic of content marketing in the pharmaceutical sector
Content marketing is a marketing technique designed to target the marketing company's audience with informative, advisory, and entertaining content. The art of content marketing is to get in touch with existing or potential customers through high-quality online content without directly asking them to buy products or services. By providing free, high-quality content that is indirectly related to the company and its products, the aim is to reach the specific target group and retain its loyalty to the company in the long term.
Ultimately, the aim is to convince the target group to buy by creating added value and to respond profitably to the content. In contrast to conservative advertising techniques such as ads, banners or commercials, content marketing does not focus on the positive presentation of the company and its products, but offers useful information, useful knowledge or entertainment.
The goal is to convey the content producer as an expert, consultant, and entertainer who demonstrates competencies, know-how, and value proposition through content. The ultimate goal, however, is still that the customer reacts profitably to the content because he gets the feeling that he has arrived at the right website and is offered something unique there.
Content marketing is therefore on the borderline of unlawful surreptitious advertising within the meaning of Section 4 No. 3 UWG. According to Section 4 No. 3 UWG, the concealment of the advertising character constitutes a prohibited act within the meaning of Section 4 No. 3 UWG. This applies in particular to editorial contributions in which advertising messages are hidden. By integrating an advertising message into the editorial contribution, the reader is misled about the advertising content of the corresponding message, which has always been classified as anti-competitive. This problem also applies in principle to content marketing, which sometimes moves in this gray area. Drawing the line is difficult and the assessment is made in each individual case on the basis of the specific circumstances. The same applies in the area of pharmaceutical marketing, where, in addition to the criteria and requirements of the UWG, the HWG, in particular Sections 3, 4 HWG, and the misleading rule must also be observed, whereby a particularly strict standard is applied according to established case law.
Pharmaceutical law expert Peter von Czettritz
Peter von Czettritz, attorney and expert in therapeutic products advertising law.
Peter v. Czettritz is a partner at the law firm Preu Bohlig & Partner in Munich, where he heads the pharmaceutical law department. He advises and represents national and international pharmaceutical and medical device companies in all areas of pharmaceutical law, patent law and competition law. He is the author of numerous professional publications and a regular speaker on all topics of pharmaceutical law.
Peter v. Czettritz is a member of the legal committee of the German Association of Pharmaceutical Manufacturers (BAH) and of the "Medical Device Law" network of the German Medical Technology Association (BVMed). He is also editor of the journal PharmaRecht published by C.H. Beck Verlag and PMI Verlag and editor of the journal Medizinprodukterecht published by Nomos Verlag.
Because the high level of protection of the health of the individual and the population is affected and advertising claims linked to health typically prove to be particularly effective, particularly strict requirements must be placed on the accuracy, unambiguousness and clarity of health-related advertising claims. Product claims are only permissible if they correspond to established scientific knowledge, which must be substantiated by double-randomized placebo-controlled double-blind studies, if necessary, which also applies to foodstuffs and food supplements. Furthermore, the separation requirement developed on the basis of the UWG also applies here, according to which editorial content must be clearly separated from advertising statements. Section 3 sentence 2 lit. 2 c HWG expressly stipulates that misleading statements are made in particular if the impression is falsely created that the advertising is not being organized for the purpose of competition. For this reason, public relations in the therapeutic products sector always run the risk of being subject to the prohibition of Section 3 No. 2 lit c HWG. If the advertising statement is made by an apparently neutral person, it appears to be a judgment, and this - as in the UWG - is misleading due to disguised advertising.
The publication serves the sale of a remedy, but does not reveal itself as advertising, but camouflages itself as - typically in remedy advertising - popular scientific editorial contribution and thus conceals the real purpose, the sales orientation. Of course, such editorial contributions as such are not prohibited, but it is the camouflage of advertising in such publications. Ultimately, of course, purely editorial texts without advertising character are permissible.
Interested in a full version?
The statement on this page is the abridged version of a nine-page detailed expert opinion by Mr. v. Czettritz. If you are interested in the full version or have any questions or suggestions, please do not hesitate to contact us:
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Careful examination necessary in individual cases
In any case, it requires careful examination in each individual case whether the requirements of the UWG and HWG to avoid misleading consumers and to comply with the separation requirement are actually met.
Conclusion
In summary, it can be stated that content marketing can also be an interesting and fundamentally permissible marketing tool in the pharmaceutical sector. However, the requirements in the pharmaceutical sector may be more difficult to fulfill than is the case for content marketing anyway, due to the strict principle that applies to advertising in the health sector. The principle of separation must be strictly adhered to and all statements made must not only not be misleading, but the statements must also be able to be scientifically substantiated. Munich, 02.06.2015 Peter v. Czettritz Attorney at Law