"E-prescription discount. Automatically save up to EUR 20 on co-payments." This was the promise with which Shop Apotheke advertised on television and on its website. The Higher Regional Court (OLG) Frankfurt am Main has now held this advertising claim to be misleading (judgment of 5 August 2026 – 6 U 25/26).
The Case: How Exactly Was the Offer Advertised?
The mail-order pharmacy advertised with the statement "E-prescription discount. Automatically save up to EUR 20 on co-payments". How high the discount actually was, however, depended on the price of the medicine in question. According to the underlying discount scale, most customers received only EUR 2.50, in some cases EUR 5. The maximum discount of EUR 20 was reached only for particularly expensive medicines.
Admittedly, the advertising also provided information on how the discount was calculated. In the view of the OLG Frankfurt, however, this information was provided too late or not clearly enough.
- On the website, the reference to the discount scale was displayed only late in the ordering process.
- In the television commercial, the discount scale was shown only in the closing sequence, in small print in the footnote area. While the statement "up to EUR 20" was spoken and clearly emphasised, the explanation of the discount scale faded into the background. Anyone who only heard the commercial did not notice the reference at all.
The OLG Frankfurt held this to be misleading. In the court's view, the average consumer does understand that "up to EUR 20" does not mean that everyone actually receives EUR 20. What is unexpected, though, is that the vast majority of discounts are only EUR 2.50 or at most EUR 5 and are thus clearly below the advertised maximum amount. This dependence on the price of the medicine, however, was not made sufficiently clear in the advertising. Consumers saw an attractive maximum amount but could not tell what discount they could realistically expect.
What was decisive, therefore, was not that the information was missing entirely, but that it was not conveyed to consumers in such a way that they could take it into account in their decision in good time and sufficiently clearly.
Why Is the Advertising Claim Misleading?
Why Was the Missing Information So Important?
For the OLG Frankfurt, it was decisive that the discount scale was of considerable importance to consumers. Anyone confronted with a discount of "up to EUR 20" does know that the maximum amount will not be reached in every case. Without further details, however, they can hardly judge what saving they themselves can actually expect.
It was precisely this difference that could be relevant to the decision whether a consumer wanted to redeem their e-prescription at the mail-order pharmacy. Whether a discount is likely to be EUR 20, EUR 5 or only EUR 2.50 can significantly influence the attractiveness of the offer.
The problem therefore lay less in what the advertising said than in what it failed to explain sufficiently.
The case shows that misleading advertising does not begin only with a false statement. Omitting decisive information can also deceive consumers.
Misleading by Omission: Missing Information Can Also Deceive
Advertising is misleading where it creates false or deceptive impressions.
A classic case of misleading advertising is where, for example, a business advertises a characteristic that does not in fact exist – active misleading (§ 5 UWG).
That, however, does not exhaust the scope of misleading advertising. Advertising can also be misleading where what is said is true in itself but an important piece of information is missing – misleading by omission (§ 5a UWG).
Misleading by omission occurs where a consumer is denied material information that they need in order to make an informed commercial decision. The information does not have to be missing entirely. § 5a para. 2 UWG expressly treats the provision of material information in an unclear, unintelligible or ambiguous manner (no. 2) or not in good time (no. 3) as equivalent to withholding it. It is therefore also problematic where the information is communicated too late, unclearly or so inconspicuously that the consumer cannot take it into appropriate account in their decision. What is decisive, then, is not only what an advertisement says but also which material information it fails to convey, or fails to convey sufficiently clearly.
Had the pharmacy advertised with "Everyone saves EUR 20" although not everyone in fact receives this amount, the statement itself would already have been false and could constitute misleading advertising under § 5 UWG.
The statement actually used, "save up to EUR 20", by contrast, was not false in itself. The words "up to" make clear that the discount may also be lower. What made the advertising problematic was rather that it did not sufficiently explain what the amount of the discount depended on and under what conditions the maximum amount of EUR 20 was reached. The court saw this as misleading by omission under § 5a UWG.
What is decisive, therefore, is not only whether an advertised maximum value is attainable, but also whether consumers learn, in good time and sufficiently clearly, the conditions that are material for putting it into context.
When Does Missing Information Become Misleading?
However, advertising does not have to disclose every conceivable detail of an offer. Not every piece of missing information automatically makes an advertising claim impermissible.
Instead, § 5a UWG applies where material information is withheld from the consumer.
Information is material within the meaning of § 5a UWG if, taking the interests of both sides into account, the trader can be expected to provide it and it carries considerable weight for the consumer's commercial decision. In addition, § 5a para. 1 UWG requires that, depending on the circumstances, the consumer needs the information in order to make an informed commercial decision and that withholding it is likely to cause the consumer to take a decision that they would not otherwise have taken.
In simplified terms, the question is this:
Is the consumer missing information that they need in order to assess the offer correctly and make an informed decision?
This depends in particular on
- whether the information is material to the consumer's decision,
- whether they need it in order to be able to assess the offer correctly,
- whether it is withheld from them entirely or conveyed only unclearly, unintelligibly or too late, and
- whether the absence of the information can influence their commercial decision.
Applied to the e-prescription discount, the decisive question was therefore this: did consumers need to know the criteria by which the discount, ranging between EUR 2.50 and EUR 20, was determined in order to be able to assess the offer realistically and make an informed decision?
The OLG Frankfurt answered this in the affirmative. Precisely because the vast majority of the discounts were well below the highlighted maximum amount, the discount scale was material to consumers' decisions. Whether they could expect a saving of EUR 20 or only EUR 2.50 or EUR 5 could influence whether they redeemed their e-prescription at this particular mail-order pharmacy.
Not every piece of missing information therefore makes advertising impermissible. Withholding information is misleading only where it concerns material information.
Is a Notice in the Small Print Enough?
The obvious objection is that the discount scale was in fact communicated – just less prominently. But material information is not sufficiently conveyed merely because it can be found somewhere in the advertising. What also matters is how clearly, comprehensibly and in good time it is made available to the consumer.
For advertising claims highlighted as an eye-catcher, the Federal Court of Justice (BGH) has developed special requirements in this regard.
Where a statement is highlighted as an eye-catcher, a clarifying notice intended to qualify it must itself form part of the eye-catching element and be clearly linked to the highlighted statement (BGH, judgment of 15 October 2015 – I ZR 260/14 – All Net Flat; BGH, judgment of 18 December 2014 – I ZR 129/13 – Schlafzimmer komplett). A notice that is lost in a cluttered block of text, becomes visible only after extensive scrolling or appears solely in a footnote at the bottom of the page is not sufficient (BGH GRUR 2018, 320 – Festzins Plus). This applies particularly strictly to advertising that is perceived only fleetingly: a restriction that appears in a television commercial merely as a brief on-screen footnote does not reach anyone who only hears the commercial.
A clarifying notice must therefore not be lost in extensive or cluttered text. The BGH has held, for example, that a notice at the end of a longer, cluttered text does not as a rule dispel an error caused by the eye-catcher if its connection to the highlighted statement is not apparent.
For the e-prescription case, this means that the discount scale was not allowed to be communicated in such a way that it practically faded into the background compared with the highlighted promise of "up to EUR 20". Material information must be provided in such a way that the consumer can perceive it in good time and take it into account in their decision.
Is "Up To" Advertising Therefore Problematic in Principle?
Advertising with maximum values is in principle permissible. The words "up to" make it clear precisely that not every customer receives the maximum value. A lower actual benefit in an individual case is therefore not automatically misleading. What matters instead are the terms of the offer and the overall impression of the advertising.
A look at typical "up to" claims shows this. With advertising for "up to 70% discount", consumers expect the maximum discount to apply to a not insignificant proportion of the goods on offer. The Regional Court (LG) Frankfurt prohibited such advertising at least in a case in which fewer than three per cent of the articles reached the advertised maximum discount (LG Frankfurt am Main, order of 26 February 2021 – 2-06 O 050/21). Anyone who promises "up to 100 Mbit/s" may do so as long as the average attainable speed does not deviate glaringly from the advertised peak value (OLG Frankfurt am Main, judgment of 12 September 2013 – 6 U 94/13; OLG Cologne, judgment of 10 March 2017 – 6 U 124/16). And anyone who advertises with "up to EUR 500 bonus" must disclose the conditions under which the bonus is realised in such a way that the customer can assess their realistic benefit.
The common denominator is always the same: the problem is not the "up to" itself but a discrepancy between the maximum value and the typical case that remains hidden from the consumer.
Note on finality: The decision of the OLG Frankfurt am Main (6 U 25/26) was issued in preliminary injunction proceedings and cannot be appealed under § 542 para. 2 ZPO. There is therefore no decision in the main proceedings.
Do You Want to Make Your "Up To" Advertising Legally Compliant, or Have You Received a Cease-and-Desist Letter for Misleading Advertising and Need Legal Advice?
Frequently Asked Questions
What is supposed to be misleading about "save up to EUR 20" if the EUR 20 is attainable?
It was not the maximum amount that was the problem, but the absence of information on what the actual amount of the discount depends on. Because the discount was only EUR 2.50 in the vast majority of cases and the scale was not made clear, consumers could not assess their realistic benefit.
What is the difference between § 5 and § 5a UWG?
§ 5 UWG concerns what is said – that is, false or deceptive statements. § 5a UWG concerns what is not said – that is, the withholding of material information that the consumer needs for their decision.
Is advertising with "up to" prohibited in principle?
No. Maximum-value advertising is permissible. "Up to" makes clear that not everyone receives the maximum value. What matters are the terms of the offer and the overall impression – in particular, whether the advertised maximum value is realistically attainable in a significant proportion of cases.
Is a notice in the small print sufficient?
Not necessarily. A material restriction must be communicated in a perceptible and comprehensible way, depending on the advertising medium. A notice that is lost in an inconspicuous footnote or – in the case of a television commercial – is only displayed on screen but not spoken, is generally not sufficient.
What are the consequences of misleading advertising?
A competitor or trade association can send a cease-and-desist letter regarding the advertising and have it prohibited by way of a preliminary injunction in urgent proceedings. The affected campaign must then be withdrawn from all channels at short notice.
