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Editorial

Legality of advertising with statements on the effects of medical treatments

January 2019 - Corporate & Commercial. Legal Developments by GRP Rainer LLP.

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Advertisements featuring statements on the effects of medical treatments are only permissible if they are supported by sound scientific evidence. This was reaffirmed by the Oberlandesgericht (OLG) Frankfurt, the Higher Regional Court of Frankfurt.

Advertisements featuring health claims are subject to stringent requirements regarding the accuracy and ambiguity of the relevant statements. This is because misleading health claims can pose a significant risk to patients. We at the commercial law firm GRP Rainer Rechtsanwälte note that for this reason statements on the effects of a medical treatment are generally only permissible if they are based on sound scientific evidence.

In a judgment from 21 June 2018, the Oberlandesgericht Frankfurt reaffirmed that advertisements featuring statements on the effects of medical treatments are permitted as long as there is no indication that the statement on their effects is contentious or that it lacks any scientific basis. The Court went on to say that if the advertising statement is contentious, the party responsible for the advertising needs to demonstrate that the statement is accurate and the scientific basis for the promised effects must already be documented at the time of the advertisement’s release (Az.: 6 U 74/17).

In the instant case, a doctor had promoted various treatment methods from the field of osteopathy on his homepage, including treatment procedures associated with craniosacral osteopathy. An association of commercial enterprises brought an action for an injunction against this. It viewed the treatment methods in question as belonging to the field of alternative medical treatments lacking scientific proof of their efficacy.

The action was partially successful. The OLG Frankfurt held that the doctor could continue to advertise with the statements on the efficacy of the general and infant osteopathic treatment methods. The Court stated that in this regard the plaintiff had failed to sufficiently make the case that the methods being promoted were not reliable as a whole and for the advertised indications. However, it took a different view with respect to the statements on craniosacral osteopathy, stating that the plaintiff had demonstrated that there was no sound scientific basis to support the effectiveness of the treatment methods in question. The OLG went on to note that study findings are only deemed to be sound if based on double-blind randomized placebo-controlled trials.

Misleading advertising or violations of competition law can quickly lead to formal warnings, damages claims or injunction suits. Lawyers who are experienced in the field of competition law can serve as competent advisors.

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