No before/after images for cosmetic surgery

Are doctors permitted to advertise cosmetic surgery, in particular by presenting photographs of patients before and after treatment, or does such advertising violate applicable law? This question had to be decided by the Higher Regional Court (OLG) Koblenz.

A doctor advertised so-called cosmetic surgery, that is, aesthetic and plastic surgical operations without medical necessity, on the Internet. For this purpose, he used photographs showing patients before and after the treatment.

Potential patients could view the images only after prior registration by email.

The Wettbewerbszentrale (German Competition Authority) saw this as a breach of law and took action against the advertising. The Wettbewerbszentrale prevailed at first instance.

The decision of the court

By judgment of 08.06.2016 – Az. 9 U 1362/15, the OLG Koblenz agreed with the court of first instance. It decided that the advertising violates the Heilmittelwerbegesetz and is therefore also unfair competition.

The Heilmittelwerbegesetz prohibits advertising for cosmetic surgery with the effect of such treatment through comparative presentation of the body condition or appearance before and after the procedure.

With this prohibition, the legislature wishes to prevent people from exposing themselves to the risks associated with a procedure without there being a medical indication for such procedure.

Conclusion

Even if the photographs are accessible to potential customers only after prior registration, advertising for cosmetic surgery with before/after images is prohibited for the purpose of health protection.