Bgh: rules for advertising with scientific studies

This must be recognizable in the advertising, ruled the federal supreme court on wednesday in karlsruhe (I ZR 62/11). The court partially ruled in favor of the pharmaceutical company sanofi-aventis, which had taken action against its competitor novo nordisk pharma gmbh for misleading advertising of insulin for the treatment of diabetes.

The defendant company had pointed out in its advertisements that its "insulindetermir" was less fattening than the "insulinlargin" of the plaintiff’s competitors. In a footnote, it had referred to a study that was supposed to prove precisely this effect. According to the BGH, however, the study itself calls into question some of its results and therefore has only limited scientific significance. "Such clarifying references are not contained in the objectionable advertisement, although the study referred to gave rise to them," the supreme court justices ruled. In doing so, the remedy manufacturer had violated the basic principle of quote truth.

Novo nordisk pharma nevertheless leaves the court as the winner, because the federal court of justice declared its comparative advertising without reference to the study to be legal. The reason: the side effect of the weight advantage had been established for "insulindetermir" in the official approval procedure. One company was allowed to rely on these results of the official test. The competition can only take action against this if it presents new scientific results to refute this effect, which were not yet available at the time of the approval decision. However, this did not happen in the proceedings.