Federal Court of Justice (BGH): PAYBACK points on the purchase of hearing aids are impermissible – the value limit for promotional gifts must not exceed €1 even for medical devices

The Federal Court of Justice (BGH) has issued a landmark decision on advertising law for medicinal products regarding the scope of § 7 HWG and the level of the value limit for promotional gifts.

By means ofjudgment of17. Juli 2025(case no.I ZR 43/24)theFederal Court of Justice (BGH)has made a fundamental decision on the permissibility of promotional gifts in the healthcare sector. It decided that fordirect advertising to the public for medical devices– such as hearing aids – thevalue limit for low-value small gifts is €1. Loyalty programmes such asPAYBACKare thus impermissible where the point value exceeds €1 per purchaseimpermissible.

What was the case about? PAYBACK bonus points for hearing aid purchases

A hearing aid provider operating nationwide had credited customers via thePAYBACK systemone PAYBACK point (value: 1 cent) for each euro of purchase valueone PAYBACK point (value: 1 cent). The points could be converted into merchandise prizes, vouchers or miles.

A competition association then warned of this asa prohibited promotional gift under § 7 HWG– successfully before the Federal Court of Justice (BGH). However, the lower courts had takena different view.

Lower instance (Higher Regional Court (OLG) Hamburg): value limit at €5 – Federal Court of Justice (BGH) explicitly disagrees

TheHigher Regional Court (OLG) Hamburghad in its decision of29. Februar 2024(case no. 3 U 83/21) assumed that PAYBACK pointsup to a value of €5for medical devices would be permissible as "low-value small gifts" within the meaning of § 7 Abs. 1 Satz 1 Nr. 1 HWG.

Reasoning:

• Medical devices are subject tono price binding.
• There wasscope for competition.
• A steering effect was only to be expected from a higher threshold value.

TheFederal Court of Justice (BGH)hasclearly rejected this reasoningand classified the €5 limit as incompatible with the HWG.

How does the Federal Court of Justice (BGH) justify the upper limit of €1 for the value limit for promotional gifts even for non-price-bound products?

1. PAYBACK points = promotional gifts

According to established case law,PAYBACK points are pecuniary benefits– regardless of the fact that they do not reduce the price immediately, but can be used later. This isnot an immediate price reduction, but rather aprohibited grant within the meaning of § 7 HWG.

2. Exception for cash discounts does not apply

The PAYBACK points are not deducted or paid out directly upon purchase of a medicinal product. They can be redeemed later – but not directly and not necessarily from the same provider. Therefore, the exception for cash discounts (§ 7 Abs. 1 Satz 1 Nr. 2 HWG) does not apply here.

3. Absolute value threshold: No relativization according to goods value

The Federal Court of Justice (BGH) makes clear:

• The low value of an advertising gift is to be determined absolutely and not relatively in relation to the product price.
• Even for high-priced medical devices (e.g. hearing aids with copayment up to € 4,500) the € 1 threshold remains binding.

A relativization would contradict the purpose and object of § 7 HWG, which is intended to prevent any improper influence on the choice of a medicinal product.

4. Uniform value threshold also for medical devices

Contrary to the view of the Higher Regional Court (OLG) Hamburg, the Federal Court of Justice (BGH) makes clear:

• The protective purpose of § 7 HWG – the prevention of improper steering – applies regardless of price binding or regulation.
• Even for medical devices, a uniform value threshold for advertising gifts of € 1 is required in order to create legal certainty and to treat comparable situations uniformly.

The previous assumption that a more generous value threshold for advertising gifts could apply to medical devices is expressly abandoned.

Practice guidance: What does this judgment mean for manufacturers and providers in the healthcare market?

This Federal Court of Justice (BGH) decision is a clear signal to all providers of medical devices, aids and other medicinal products.

Generally not permitted:

• Advertising with PAYBACK or bonus points at a point value over € 1 per product.
• Customer loyalty schemes with indirectly monetary benefit which is not realized directly upon product purchase.

Generally permitted:

• Immediate price reductions or cash discounts, provided they are transparent, unambiguous and immediate upon purchase of the product.
• Low-value advertising gifts worth up to a maximum of € 1 per product – regardless of the total price.

Conclusion: The Federal Court of Justice (BGH) provides clarity on the value limit for advertising gifts under medicinal product law

With this decision, the Federal Court of Justice (BGH)establishes uniform and clear standards for the permissibility of advertising gifts in the field of medical devices. Attempts to provide benefits via PAYBACK or bonus systems will in future besubject to stricter legal review.

The leading principle reads:

"The value limit for minor trifles within the meaning of § 7 Abs. 1 Satz 1 Nr. 1 HWG is €1 – even for medical devices not subject to fixed pricing."

Our note

Are you a provider, manufacturer or marketing manager in the field of medical devices or other health products?

AVANTCORE Lawyers in Stuttgart are experts inmedical device law and incompetition law. We review your advertising measures for HWG compliance – forward-looking, competent and court-proof.