Since autumn 2021, a growing number of express delivery services (First A, MAYD, Phaster, Volt/Apocity, to name a few) in major German cities have been offering door-to-door delivery of medicines via app in 30 minutes or less.
An app serves as the contact and communication platform between pharmacies – which work in cooperation with express delivery services – and customers. The delivery is then usually made by (bike) messengers employed by the respective express delivery service. The product range is (currently) limited to over-the-counter medicines and other common pharmacy items (i.e. corona tests, dietary supplements, etc.).
With the expected more extensive use of the e-prescription, the delivery of prescription medicines is also set to become possible in the course of 2022, which is likely to again considerably ramp up the market relevance of the delivery option and competition not just with “normal” retail pharmacies, but also with mail-order pharmacies.
Dr Enno Burk and Dilara Puls from our Berlin healthcare team summarise the current developments and the underlying legal framework.
I. Messenger service or mail order?
1. When classifying express delivery services from a legal standpoint, the first question to be asked is whether such services should be regarded as messengers of the pharmacy or whether the fact that the pharmacy is using express delivery services already qualifies as mail-order activities that require a licence:
- A delivery by messenger within the meaning of section 17(2) German Ordinance on the Operation of Pharmacies (Verordnung über den Betrieb von Apotheken, “ApBetrO”) is to be assumed if the pharmacy specifies which natural person will deliver the medicine off the pharmacy premises and this person is subject to the head pharmacist’s right to give instructions.
- If a third person stipulates, even temporarily, which specific natural person will deliver the medicine to the customer or his/her designated recipient off the pharmacy premises, and if this third person has a right to give direct instructions to the person delivering the medicine, then that will likely constitute a mail-order delivery.
2. Express delivery services have until now – as far as we can tell – operated exclusively as “messengers of the pharmacy” and not as its dispatcher.
II. Can pharmacy messengers be regarded as legally independent express delivery services?
1. The wording of section 17(2), sentence 1 ApBetrO does not require that the messengers be employed by the pharmacy. The background and the underlying system of the relevant provision laid down in section 17 ApBetrO also support this view. Consequently, corporations or partnerships with employees can also qualify as “messengers of the pharmacy”.
2. However, the Federal Union of German Associations of Pharmacists (ABDA) holds a contrary view and requires that the messengers be employed by the pharmacy. A court decision on this issue has not yet been handed down, but legally valid arguments for ABDA’s position are not readily apparent.
III. Pharmaceutical advice in the case of express delivery services
Regardless of the messengers’ legal status, the delivery must comply with the requirements for pharmacists’ obligation to provide information in accordance with section 20 ApBetrO as well as the special requirements laid down in section 17 ApBetrO.
- Pursuant to section 17(2), sentence 5 ApBetrO, a delivery of medicine must be carried out by “pharmaceutical staff of the pharmacy” if no advice has been provided prior to the delivery.
- Since the bike messengers of the express delivery services are not “pharmaceutical staff” of the pharmacy, the cooperating pharmacies offer customers pharmaceutical advice by telephone before the order is placed. Video consultations with pharmacy staff (for example, via smartphones carried by the messenger) are also conceivable.
IV. Transparency requirements: The pharmacy – and not the express delivery service – is the contracting partner
- During the order and delivery process, it must be clearly and unambiguously communicated to the customer that the medicine is not being dispensed by the express delivery service but instead by a specifically named pharmacy.
- In addition, it must be made clear that the express delivery service itself is not a pharmacy and is therefore neither a contracting partner for the sale of medicine, nor is it responsible for the (pharmaceutical) advice or any other duties incumbent on the pharmacy towards the customer.
V. Outlook
1. The emergence of express delivery services in major German cities is only just beginning. As soon as the establishment of the e-prescription makes it possible for the delivery option to also be extended to prescription medicine, a marked increase in demand and therefore also in the potential of express delivery services can be expected.
2. From this point on, at least from the perspective of customers who are comfortable with smartphones and online ordering processes, there will be little reason not to make use of the convenience of ordering medicines – particularly prescription medicines – by app:
- They will save themselves a trip to the pharmacy when they are ill and still receive the medicine without the delay that comes with ordering from a mail-order pharmacy – a delay that limits the economically attractive prescription share in the mail-order business, except for customers who are chronically ill.
- At the same time, it is also possible for the pharmacist to provide pharmaceutical advice via video conference or telephone without sacrificing quality.
3. Therefore, when combined with the option of purchasing via an express delivery service, e-prescriptions are likely to give participating retail pharmacies in urban areas a significant competitive advantage over mail-order pharmacies that are located further away or in other EU countries, as well as over retail pharmacies that do not cooperate with express delivery services.
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