The Austrian Chamber of Pharmacists brought an action for an injunction against this, together with an application for an interim injunction on the grounds of misleading advertising. The Vienna Higher Regional Court (OLG) issued the requested injunction. The Vienna Higher Regional Court came to the conclusion that the advertising slogans sued for conveyed to the average viewer an (incorrect) exclusivity with regard to doctors' healthcare services ("And nowhere else") and gave the misleading impression that only doctors were competent to answer health questions. The Higher Regional Court of Vienna stated that "ultimately, pharmacists are also suitable and competent contacts with regard to bringing about and maintaining health". Furthermore, the advertising also gave the (incorrect) impression that it was better to obtain medication from a doctor than from a pharmacy. The Vienna Higher Regional Court thus came to the legal conclusion that the advertising statements of the Medical Association were misleading statements of fact within the meaning of the Unfair Competition Act (UWG).
The appeal lodged by the Medical Association against the interim appeal to the Supreme Court (OGH) against the interim injunction was unsuccessful. In its appeal, the Austrian Medical Association primarily argued that "the overall impression of the advertising announcement must be taken into account and the fundamental right of freedom of expression". In the view of the Medical Association, "in case of doubt, the most favourable interpretation for the Medical interpretation variant most favourable to the Medical Association and thus a permissible value judgement". The Supreme Court referred to its established case law on this argument of the Medical Association: "If an announcement allows for several interpretations, the advertiser must accept the interpretation that is least favourable to him." Furthermore, the Supreme Court referred the Medical Association to the principle that health advertising must generally be judged according to strict standards.
The Supreme Court thus confirmed the order issued by the Vienna Higher Regional Court to the Medical Association to refrain from making the advertising statements in question. This decision shows once again that particular caution must be exercised by the advertising company or institution when making claims in health advertising.
First published in Horizont on 19/04/2024.
