Advertising in dentists: Hamburg court clarifies the rules

The judgment of the appeal court in Hamburg, in a case in which Pinsent Masons acted for an international client, clarified who is responsible for promotional flyers displayed in practices, and provided further guidance to help dental sector businesses navigate a complicated and dynamic set of rules.

A complex legal framework

Strict rules govern the promotion of dental products and services and, in Germany, the rules that apply depend on who is behind the marketing activity, whether that is the dentist themselves or third party providers of services or products, and the medium chosen to advertise – be that on promotional flyers in waiting rooms or treatment areas, or on dentists' websites or social media channels.

The rules that apply also depend on the nature of the content of the marketing. So-called 'advertorials' must be treated with caution, for example, as editorial content needs to be kept separate from advertising in a way the reader realises when being confronted with marketing information. This principle applies equally to digital and analogue media.

There are some overarching requirements that apply to any health-related consumer communication which are relevant to dental advertising. Those communications must meet the legal standards of clarity, unambiguity and provability – standards that apply because of the weight people place on statements made which relate to their health.

Beyond these high-level obligations, there are more detailed rules and restrictions that apply.

For instance, there are provisions set out in dentists’ professional codes differentiating between "permissible patient information" and "undue advertising undermining the standards of the dental profession". In particular, any communication, which is laudatory, misleading, disparaging or comparative, is to be deemed unlawful. Also, dentists may neither initiate nor tolerate advertising by third parties that run contrary to those standards.

In addition, like in other jurisdictions, Germany has specific laws dealing with and setting standards in respect to advertising made in health-related context.

Germany's Act Against Unfair Competition is complemented by the so-called "Heilmittelwerbegesetz", a statute focusing precisely on the promotion of therapeutic services and products. These rules contain restrictions on endorsements given by dental or medical practitioners, and restrictions on awarding incentives, benefits and other add-ons. The same is true for discounts on goods and services falling within the scope of sector-specific regulatory framework.

Lessons from the Hamburg case

Many manufacturers and service providers in the dental sector have a substantial interest in promoting their products and services in dental practices. This is because it is a place where promotional information is likely to hit the targeted audience and also because having it displayed within the premises of the practice can suggest that there is a level of endorsement given to the information displayed by the practice's dental practitioners.

A recent ruling by the appeal court in Hamburg concerned promotional flyers placed in dental practices. The flyers were part of an advertising campaign concerning discounts on bleaching and professional tooth cleaning.

The court helpfully confirmed that:

• promotional information – i.e. product flyers and similar leaflets – can be placed in dental practices. Third parties that merely provide dentists with respective material are not responsible for unlawful incitement of the dentist to act in breach of dental professional codes;
• dentists are not responsible for the content of third party promotions on flyers or leaflets displayed in their practices, even if the dentist happens to use the promoted equipment for therapeutic treatment, The responsibility for the advertising remains with the third party manufacturer;
• in principle, dentist are free to accept promotional material being placed in the waiting rooms in their dental practices. Doing so does not constitute undue promotion of third party goods or services. Minor weight only is to be given to the consideration that patients will confer that their dentist to some extent endorses the goods or services promoted in their practice;
• under German law, the promotion of toothbrushes and the standard use of those products should be legally assessed in accordance with the "normal" standards set out in the Act Against Unfair Competition, and not the tighter restrictions set out in the Heilmittelwerbegesetz. The appeal court in Hamburg took the view that the mere advertising of manual or power brushes does not involve a sufficient link to a disease that would require the advertising to be assessed against the sector-specific rules in the Heilmittelwerbegesetz;
• if dental equipment is promoted which serves the purpose of allowing the dentist to carry out dental treatment that arguably cures or alleviates a pathological condition, the advertising is likely to be assessed against stricter rules of the Heilmittelwerbegesetz. This might be the case where the services being advertised are professional tooth cleaning or bleaching, for example, although there is legal uncertainty as to which types of treatment qualify as being therapeutic and therefore subject to the Heilmittelwerbegesetz. Teeth discoloration and plaque have both previously been considered as pathological conditions;
• discounts or partial reimbursements may be awarded in cases where patients ask for and receive a dental treatment carried out with a specific cleaning or bleaching device that has been advertised if they are not satisfied with the results, provided that the benefits of the discounts or reimbursement are derived by the patients and not the dentists themselves. Under German law, any such benefit, even when enjoyed by the patient only, needs to be expressed in definite terms, i.e. as a specific amount or percentage, so that this is clear for patients to understand.

The ruling is a useful reminder of the risks associated with in advertising in dental practices, but the clear and detailed reasoning provided by the judges will help dental sector advertisers to better assess the lawfulness of prospective promotions and identify smart and compelling ways to convey their promotional message.