Advertising Law for Physicians and Clinics
Advertising law for physicians and clinics encompasses all legal provisions and regulations that physicians and clinics must comply with as advertisers in the healthcare sector. Its purpose is, on the one hand, to ensure patient protection and, on the other hand, to prevent the commercialization of the medical profession. While doctors were prohibited from almost any form of advertising until just a few years ago, advertising in the form of factual, profession-related information—provided it complies with various legal regulations—is now permitted.
The legal foundations that form the regulatory framework for advertising by physicians and clinics include, in addition to the medical code of ethics in the form of the Model Professional Code of the German Medical Association or the respective professional codes of the medical associations in the individual federal states, the Law on the Advertising of Medicinal Products (HWG) and the Act Against Unfair Competition (UWG). The German Act on the Advertising of Medicinal Products specifically regulates restrictions on advertising in the healthcare sector directed at medical laypersons, while the Act Against Unfair Competition applies to advertisers in all industries and to all target audiences.
Application of Advertising Law to Physicians and Clinics
The extent to which the various provisions of advertising law apply to physicians and clinics depends, on the one hand, on whether the advertiser is a clinic or a clinic operator, or a physician advertising for their practice or clinic. For example, a clinic operator who wishes to advertise their clinic must comply not only with the Unfair Competition Act but also, in particular, with the Law on the Advertising of Medicinal Products, whereas a physician who owns a practice or clinic must primarily adhere to the medical code of ethics. Furthermore, when applying the laws governing advertising by physicians and clinics, it is important to consider whether the advertising is directed at medical laypersons or a professional audience. This is because advertising directed at medical laypersons is generally subject to greater restrictions than advertising directed at a professional audience.
The German Law on the Advertising of Medicinal Products (HWG)
The German Law on the Advertising of Medicinal Products (HWG) (pdf), which came into effect in July 1965, regulates the advertising of pharmaceuticals, medical devices, and “other remedies, procedures, treatments, and items, insofar as the advertising claim relates to the diagnosis, elimination, or alleviation of diseases, ailments, physical injuries, or pathological conditions in humans or animals, as well as plastic surgery procedures, insofar as the advertising claim relates to the alteration of the human body without medical necessity.” (HWG §1) It applies in particular to manufacturers and suppliers of pharmaceuticals and medical devices, as well as to hospitals, pharmacies, and physicians, and primarily regulates advertising outside professional circles—that is, advertising measures directed at the general public.
In 2012, the German Law on the Advertising of Medicinal Products was revised and brought into line with EU directives. With the publication of the new German Law on the Advertising of Medicinal Products in the Federal Law Gazette on October 25, 2012, several changes came into effect that significantly relax the previously existing restrictions on advertising by physicians and clinics and completely lift some of the prohibitions that had been in force until then. Of particular significance are the following changes to Section 11 of the HWG:
- The reproduction of medical case histories is now permitted, subject to the restriction that it must not “be presented in an abusive, repulsive, or misleading manner, or, through a detailed description or depiction, lead to a false self-diagnosis.” (HWG §11 No. 3)
- The ban on the visual depiction of diseases and their progression has been relaxed. (HWG §11 No. 5) Thus, advertising may not use clinical pictures or medical depictions that “in an abusive, repulsive, or misleading manner portray changes in the human body resulting from diseases or injuries, or the effect of a drug on the human body or its parts.”
- Under the old law, advertising claims that evoked or exploited patients’ fears were prohibited. The new law stipulates that “advertising claims that suggest that health could be impaired by not using the drug or improved by using it” are prohibited. (HWG §11 No. 7)
- The ban on advertising using statements from third parties has been relaxed. (§11 No. 11) Advertising that includes letters of thanks, acknowledgment, or recommendation, as well as references to such statements, is now permitted, provided they are not “presented in an abusive, offensive, or misleading manner.” Recommendation-based marketing on doctor review portals is thus permitted.
- Advertising may now include prize contests or raffles, provided they do not “encourage the inappropriate or excessive use of medicinal products.” (HWG §11 No. 13)
- the ban on advertising using expert opinions, testimonials, or professional publications (HWG §11 No. 1)
- the ban on the depiction of physicians in professional attire or while performing their duties, also known as the “white coat ban” (Section 11(4))
- the prohibition on advertising using foreign or foreign-language terms, unless they have entered general German usage (HWG §11 No. 6)
- the prohibition on publications that could lead to self-diagnosis (HWG §11 No. 10)
The Act Against Unfair Competition (UWG)
The Act Against Unfair Competition (pdf) forms the legal basis for combating so-called unprofessional or immoral advertising and serves “to protect competitors, consumers, and other market participants from unfair business practices.” It applies to advertisers in all industries—including clinics and similar healthcare facilities—and regulates the permissible scope of advertising measures directed at all audiences; in the case of healthcare advertising, this includes both medical laypersons and members of the professional community. Since it came into force in 1896, the Unfair Competition Act has been frequently revised and amended, most recently in 2004 and 2008.
Essentially, the Unfair Competition Act stipulates that unfair business practices that are likely to significantly harm the interests of competitors, consumers, or other market participants are prohibited (UWG § 3). Advertising messages must therefore not be contrary to public policy—in terms of poaching customers, obstruction, exploitation, breach of law, or market disruption—and they must not mislead the intended audience, whether they are medical laypersons or members of the professional community.
Whether an advertising message is contrary to public policy and misleading within the meaning of the UWG depends on how it is perceived by the target audience. Consequently, a statement that is objectively correct can still be misleading if it is subjectively perceived by the intended audience as incorrect. Advertising messages in the healthcare sector are generally to be assessed from the perspective of an average layperson.
Unfair practices prohibited under the UWG—which are particularly relevant for clinics and other healthcare facilities wishing to advertise—include:
- business practices “that are likely to exploit consumers’ mental or physical infirmities, old age, business inexperience, credulity, fear, or distress” (UWG §4 No. 2) (e.g., in the field of preventive medicine)
- commercial practices that violate a statutory provision “intended to regulate market conduct in the interest of market participants” (UWG §4 No. 11)
- misleading commercial practices (UWG §5). A commercial practice is considered misleading “if it contains false information or other information likely to deceive” (e.g., misleading advertising)
Medical Ethics / Model Professional Code of Conduct for German Physicians (MBO)
The medical code of ethics, in the form of the Model Professional Code of Conduct for Physicians Practicing in Germany (pdf), governs both the conduct of physicians toward patients, colleagues, and other partners in the healthcare system, as well as their conduct in public. It contains the most comprehensive restrictions on advertising by physicians. Until a few years ago, medical ethics prohibited physicians from engaging in almost any form of advertising for their own practice or the professional activities of other physicians. It was not until 2002 that the provisions in §27 of the Model Professional Code (Permitted Information and Unprofessional Advertising) were relaxed in the wake of the Federal Constitutional Court’s liberal rulings on the advertising rights of independent professionals.
Since then, doctors have been permitted to promote themselves by providing factual, profession-related information (MBO §27 No. 2). The prerequisite is that they adhere to the applicable guidelines of the Model Professional Code. Objective information includes, among other things, information about the range of services offered, provided that the activities are not highlighted in an advertising manner. Doctors are also permitted to announce and specify qualifications they have acquired or areas of specialization, provided that the specified activities are not performed only occasionally (MBO §27 No. 4/5). Furthermore, it is permitted to draw attention to one’s practice with a sign, provided that it is not intrusive and does not exceed a specified size.
“Unprofessional advertising”—which is promotional, misleading, or comparative (MBO §27 No. 3) and thereby unduly influences medical laypersons and indirectly endangers their health—remains prohibited. This includes, in particular, eye-catching advertisements, the use of superlatives, and self-praise.
Regulations for Physician and Clinic Advertising on the Internet
Advertising for doctors and clinics on the Internet—for example, by maintaining a clinic or doctor’s website or by presenting information on an expert platform such as the Leading Medicine Guide—is generally permitted. The legal basis for the permissibility of clinic advertising on the Internet includes, among other things, a ruling by the Federal Constitutional Court dated July 17, 2003, in which it was decided that clinics may advertise on the Internet provided that their self-presentation is limited to factual information.
Furthermore, the same legal provisions and regulations apply to online advertising by doctors and clinics as to advertising in other media. The German Law on the Advertising of Medicinal Products (HWG), the German Law Against Unfair Competition (UWG), and the Model Code of the German Medical Association thus also provide the legal framework for online advertising by doctors and clinics. Presentations by doctors or clinics on the Internet must therefore not contain any advertising that is contrary to professional ethics, such as promotional highlights or exaggerated claims.
In addition to the German Law on the Advertising of Medicines, the German Act Against Unfair Competition, and the medical code of ethics, the provisions of the German Telemedia Act (TMG) must also be observed in advertising by doctors and clinics. The Telemedia Act (pdf), which came into effect in March 2007, establishes the legal framework for telemedia—that is, for electronic information and communication services in Germany. Among other things, it contains provisions regarding the general obligation to provide information in the legal notice of telemedia services (TMG §5), such as websites for doctors and clinics.
For example, doctors are required to provide, among other things, their professional title, the country in which it was obtained, the relevant medical association, and contact information (phone number, fax number, or email address). Additional requirements and regulations that must be observed when designing a doctor’s or clinic’s website or in online advertising by doctors and clinics in accordance with the Telemedia Act include:
- Statements and information must be factual and relate to the provision of medical services.
- Organizational information regarding location and hours of operation is permitted.
- The domain name must not give the impression that a single physician covers a specific specialty (e.g., www.kardiologe.de) or is the only practitioner of a particular specialty in a given location if this is not the case (e.g., www.kardiologie-berlin.de).
- Combinations of the medical specialty and the doctor’s name are permitted in the domain name.
- Listings in link directories where other doctors can also register are permitted.
Important Notes
The purpose of this text is not to provide legal advice, but merely to offer general information on advertising law for doctors and clinics. If you require detailed, personalized advice for your practice or clinic, it is advisable to consult a specialized attorney.
The selection of the featured experts presented in this compendium was made in collaboration with numerous opinion leaders and medical professionals, following strict guidelines and thorough research. Due to the comprehensive and multilingual nature of the presentation, these costs are partially funded by the physicians and clinics. The content and presentations on the portal and by the medical professionals are regularly reviewed from a legal perspective to ensure compliance with current legislation governing advertising by doctors and clinics.
Excerpt: Attorneys Specializing in Medical Law
- Bahner Law Firm, Heidelberg; Beate Bahner, Specialist Attorney for Medical Law
- TemmeKlein Attorneys at Law, Cologne, Christoph Klein, Attorney at Law and Specialist in Criminal Law
- Wende | Erbsen & Partner Law Firm, Stuttgart, Specialists in Medical Law
- Wienke & Becker Law Firm, Cologne, Dr. Albrecht Wienke, Specialist in Medical Law
- Kugler & Weingärtner Partnership, Berlin Mitte, Sascha Kugler, Specialist Attorney for Medical Law
- Engel Heckmann & Partner Law Firm, Düsseldorf, Katharina Eibl, attorney specializing in medical law
- LEX MEDICORUM, Medical Law Firm, Leipzig, Jan Willkomm, attorney specializing in medical law
- Dr. Herzog & Kollegen Law Firm, Würzburg, Daniela Naumann, Specialist in Medical Law
