What is the difference between advertising and providing information?

Medical advertising is highly regulated. The advertising of prescription medicine is even prohibited.

This is the result of European legislation— Article 88 (1)(a) of Community Directive 2001/83—that has been implemented in national legislation.

In a German case (C-316/09) that eventually reached the Court of Justice for the EU (CJEU), pharmaceutical company Merckle contested the diffusion, by its competitor MSD Sharp & Dohme, of information about prescription medicines on its website. Merckle said that by acting in this way, MSD had breached the law prohibiting advertising for medicines, and in so doing, it displayed unfair behaviour. Indeed, Merckle won.

However, MSD argued—in its last appeal before the Bundesgerichtshof (the German Federal Supreme Court)—that the material in question was information that was commonly available to any consumer, as the material was limited to a reproduction of the packaging of the product, the therapeutic indication and the notice of use. MSD said that this was not advertising.