In its ruling from June 8, 2016 (Ref.: 9 U 1362/15), the Higher Regional Court of Koblenz decided that advertising for cosmetic surgery must be strictly limited. Advertising with before-and-after images misleads patients into unnecessary operations and is therefore inadmissible.

With this decision, the Higher Regional Court of Koblenz agrees with the lower court, the Regional Court of Koblenz (judgment of 15.12.2015 Ref.: 3 HK O 33/15).

Regulation only applies to cosmetic surgery

The need for protection against unnecessary interference with human health was recognized by the legislator at an early stage. In order to prevent risks, it reacted by establishing an explicit advertising ban in Section 11 para. 1 sentence 3 of the Therapeutic Products Advertising Act (HWG). The standard prohibits the advertising of cosmetic surgery with the effect of the treatment. It is therefore prohibited to generate new customers through comparative depictions of people before and after a procedure.

The advertising ban applies exclusively to plastic surgery procedures. This includes all operations that are purely medical and not absolutely necessary. In order to ensure the greatest possible protection against unnecessary interventions, the legislator provides for limited advertising options. In doing so, it clearly distances itself from American advertising measures, for example.

Effects under competition law

A violation of the Therapeutic Products Advertising Act often also means a violation of competition law. A doctor who advertises in an inadmissible manner regularly gains an advantage over his competitors. At the same time, a ban on advertising also represents an encroachment on the doctor’s constitutionally protected position.

In the opinion of the court, this cannot be deviated from even if the images can only be accessed after registration. The legislator had completely prohibited advertising with before/after images.

Intervention is proportionate

The court’s decision shows the relevance of health protection in competition law as well. The Court of Appeal makes it clear once again that the associated restrictions to the detriment of doctors must be accepted. At the same time, it states that compatibility with German constitutional law is ensured and that the principle of proportionality is upheld.