Pharmacist
acts
unfair.
Pharmacist
acts
unfair.
from
No collection of health data on Amazon without consent. When selling pharmacy-only medicines, a pharmacist must ensure that the customer has consented to the processing of health data.
Health data
Health data is sensitive and therefore special data within the meaning of the GDPR and requires the express consent of the data subject before it can be processed. Otherwise, data processing is prohibited under data protection law .
A pharmacist offered pharmacy-only medicines via the online sales platform Amazon. During the ordering process, the customer was able to place the medication in the shopping cart and pay for it. The customer’s name and address were stored by Amazon and transmitted to the pharmacist after the order was placed. The customer did not give their express consent to the storage and processing of health-related data in advance.
A competing pharmacist objected to the sale of pharmacy-only medicines via Amazon as anti-competitive due to a breach of the data protection regulations applicable to health data. In the appeal instance, the competitor ‘s claim was upheld. An appeal by the pharmacist against the appeal ruling was unsuccessful.
GDPR contains market conduct rules
In its ruling dated March 27, 2025 – I ZR 222/19, the BGH confirmed the anti-competitive nature of the Amazon offer. The infringement of data protection provisions for the protection of health data could be pursued by way of a competition law action because the relevant provisions are market conduct rules.
The sale of pharmacy-only medicines via Amazon without the customer’s prior consent to the processing of health data constitutes an unfair commercial act.
The provisions on the requirement for consent to the processing of personal data serve to protect the personal interests of consumers, particularly in connection with their participation in the market. Consumers should be free to decide whether and to what extent they disclose their data in order to participate in the market and conclude contracts.
The contested collection and processing of order data on Amazon constitutes the processing of health data that is not justified by effective consent. Implied consent is not sufficient.
Received a cease and desist letter?
How to react
You are best advised to
cease and desist letter!
A cease and desist letter, e.g. for infringement of competition law, industrial property rights or copyright, should always be taken seriously, as it can have considerable legal and financial consequences.
Timely and professional advice is crucial in order to minimize risks and develop the right strategy.
- Check cease and desist letter: Have the cease and desist letter legally checked. Not every cease and desist letter is justified, formally correct and abusive cease and desist letters are unlawful.
- Observe the deadline: Be sure to respond within the set deadline to avoid further legal action such as an injunction or a lawsuit.
- Check the cease-and-desist declaration: Do not sign a pre-formulated cease-and-desist declaration without legal advice. It could be too far-reaching and lead to considerable and lasting disadvantages. Once a cease-and-desist declaration has been signed, it is almost impossible to get rid of it and can result in considerable follow-up costs in the form of high contractual penalties.
- Strategy: Regardless of whether the cease and desist letter is justified or not, you should consider the right strategy for responding to the cease and desist letter with professional support. Many aspects play a role here. For example, there may be formal errors or the submission of a cease-and-desist declaration may involve incalculable risks.
Conclusion
The processing and use of health data when ordering medicines from Amazon without the customer’s express consent constitutes a breach of the GDPR and is therefore unfair. In this case, competitors are entitled to injunctive relief, which they can assert by means of a cease and desist letter and, if necessary, an injunction.
We are happy to
advise you about
Competition law!
