Dm’s online pharmacy model under fire: German rules on pharmacy‑only medicines in digital platforms

dm’s online pharmacy model

dm has recently extended its online offering to include pharmacy‑only medicines, accessible via its regular online storefront alongside its traditional drugstore products.

The medicines are dispensed by a Czech mail‑order pharmacy, reportedly operated by dm-med (which seems to be a wholly owned subsidiary of dm). On the dm website, the pharmacy-only products appear in a unified web environment together with typical drugstore articles. A notice indicates that this area constitutes dm-med’s dedicated section and that the products are sold directly by dm-med. According to information provided by dm, dm-med products (even if purchased simultaneously with other drugstore articles on the website) are shipped separately and are handled entirely separately by dm-med.

Nevertheless, Wettbewerbszentrale argues that (i) such a model impermissibly blurs the line between drugstore retail and pharmacy‑only products and (ii) the German statutory requirements regarding the ownership and operation of pharmacies are unlawfully circumvented.

German rules on pharmacy-only medicines and product separation

German law distinguishes between prescription-only and over-the-counter medicinal products. Over-the-counter products are further divided into pharmacy-only and products freely available in general retail.

Pharmacy‑only products are regulated in section 43 of the German Medicines Act (Arzneimittelgesetz – “AMG”). They can be obtained without a prescription but require a controlled distribution channel with access to professional pharmaceutical advice.

German law regulates not only who may dispense pharmacy‑only medicines, but also how these may be presented. Section 4 para. 1, 1a of the German Pharmacy Operating Regulation (Apothekenbetriebsordnung – “ApBetrO”) requires that the operating rooms of a pharmacy must be separated by walls or doors from rooms with other commercial purposes. Thus, pharmacy and drugstore operating rooms must not form a single unit, regardless of ownership.

These rules aim to ensure that pharmacy‑only medicines are not perceived as ordinary consumer products. A spatial link with everyday goods (cosmetics, food, household items) may trivialise risks and encourage impulse buying. Consumers must clearly recognise when they are dealing with a pharmacy – a regulated healthcare provider – versus a non‑pharmacy retailer.

According to its press release, the Wettbewerbszentrale considers dm’s sales model to infringe these regulations. In its view, the separation rules must also apply in an online environment to protect the public from misuse or overuse of medicines. Integrating pharmacy-only products into a drugstore’s online shop would undermine the pharmacy-only obligation.

Ownership and independence requirements under German pharmacy law

Beyond distribution channels and product range separation, German pharmacy law contains strict rules on pharmacy ownership and operation.

Section 1 of the German Pharmacy Act (Apothekengesetz – ApoG) requires a licence to operate a pharmacy. Section 2 ApoG provides that a licence is granted only to an individual pharmacist and not to corporations. Section 8 ApoG prohibits contracts giving non-pharmacists a share in profits or significant influence over pharmacy operations. Pharmacies may only be run in the form of a civil-law company (GbR) or general partnership (OHG), with all partners being pharmacists.

Yet, mail-order pharmacies from other EU countries are not per se bound by the German Pharmacy Act. The fundamental European freedoms, especially the free movement of goods (Article 28 et seq. TFEU), apply to cross-border trade. Under the country-of-origin principle, a pharmacy based in another EU state is primarily subject to that state’s laws. If the relevant home laws generally allow the operation of the business model in question, the pharmacy may (at least generally) offer its services EU-wide.

However, Wettbewerbszentrale sees a violation of the independence and participation rules in the distribution structure used by dm. Although the sale is formally handled by a Czech mail-order pharmacy, it argues that dm is involved in the operation to an extent incompatible with these requirements. From the consumer’s perspective, the products appear to be part of dm’s general online offering, and the cross‑border structure may be viewed as functionally undermining German protective rules.

Recent case law

The dispute cannot be assessed in isolation. It must be viewed in light of the German Federal Court of Justice’s (Bundesgerichtshof – “BGH”) previous jurisprudence, including the “Arzneimittelbestelldaten III” ruling handed down last year (BGH I ZR 222/19).

The BGH held that, with regard to section 43 AMG, it is decisive who is placing the products on the market (Inverkehrbringen), whereby this act always presupposes the storage or keeping in stock of medicinal products in all cases of placing on the market. Instead, the mere offering without holding stock does not constitute placing on the market. Against such background, if dm can argue (similarly to Amazon) that its online platform merely transmits the customer’s order while the pharmacy stores the medicines, processes orders and dispatches products, courts may regard dm-med (i.e. the pharmacy and not dm itself) as placing the medicines on the market.

It should, however, be emphasized that the actual handling and placement of the products on the market is merely the decisive element for the assessment of the regulatory implications; yet, with respect to potential unfair advertising practices, the courts may ultimately also take into consideration how the services are offered on the website and whether dm (potentially falsely) conveys the message that it handles the placement itself, and – due to such presentation – misleads the customer.

Finally, with regard to the previously mentioned Section 8 ApoG which aims to prevent third parties from gaining undue economic influence over a pharmacy, it should be noted that dm-med (which is controlled by dm) allegedly operates the relevant pharmacy, i.e., it may be difficult to argue that – in line with Amazon’s approach – dm merely maintains a platform fee model. However, at this stage, where not much information is yet available, the court's assessment will mainly be driven by the actual holding structure and the question of the extent to which the chosen model actually represents or otherwise implies any undue economic influence that may be exercised by dm (which is currently not fully clear).

Practical significance and outlook

The proceedings pending at the Regional Court of Karlsruhe will be highly relevant for online distribution models of pharmacy‑only medicines which rely on a German platform operator (as is the case for dm). Following the launch of dm-med in December 2025, competitor Rossmann has now also announced its intention to enter the mail-order pharmaceutical market. A clear judicial line on the admissibility of integrated “retail plus pharmacy” platforms will therefore be highly relevant for market participants and investors in the digital health and retail sectors, as such business models have clearly already gained ground outside the EU. In addition to the aforementioned regulatory scrutiny, operators of such models should also bear in mind that the presentation on their webpages will have an impact on the legality and on how the functioning of the platform is legally assessed, e.g. from an unfair advertising law point of view.

* * *

Authors: Andrea Schmoll, Luisa Jakobs, Florian Reiling, Jonas Völkel