Gleiss Lutz secures an injunction for Aesculabor Hamburg before the Hamburg Regional Court to put a stop to advertising for coronavirus PCR test kits aimed at non-professionals

Aesculabor Hamburg GmbH is a medical laboratory represented in Germany’s Association of Accredited Laboratories in Medicine (ALM). In its judgment of 17 November 2020, Hamburg Regional Court granted Aesculabor’s request for an injunction against adverts for Coronavirus PCR test kits outside of professional circles, in particular on the web platform Amazon.

Hamburg Regional Court ruled that the offer on the web platform Amazon constitutes impermissible advertising within the meaning of section 12(2) German Health Products and Services Advertising Act (Heilmittelwerbegesetz). This provision bans advertising for analyses performed in order to ascertain the presence of a notifiable disease (such as Corona) under the German Infection Protection Act (Infektionsschutzgesetz). The judgment is important in ensuring that PCR tests for coronavirus be carried out only after a physician has been consulted and specialist medical staff have taken samples. This avoids errors caused by samples being improperly taken. The judgement also contributes to Germany’s national testing strategy by concentrating existing test capacities on examinations that are medically indicated. An appeal can still be brought against the judgment.

A team drawn from Gleiss Lutz’s Healthcare & Lifescience industry group worked on behalf of ALM and Aesculabor Hamburg, led by Berlin partner Dr. Stefan Weidert (IT), Dr. Reimar Buchner (healthcare, partner) and Dr. Enno Burk (healthcare, counsel).