Out-Law Analysis | 12 May 2020 | 8:19 am | 4 min. read
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.
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.
Dr. Nils Rauer, MJI
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
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.
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:
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.