Before-and-After Advertising for Hyaluronic Acid & Botox Prohibited – Federal Court of Justice (BGH) Sets Strict Limits for Practices

Before-and-after depictions for aesthetic treatments such as hyaluronic acid or hyaluronidase injections are inadmissible outside of professional circles. With a highly noted judgment of 31 July 2025 (Az. I ZR 170/24), the Federal Court of Justice (BGH) has delivered a landmark decision for the aesthetics and beauty industry.

The key point: Even minimally invasive injection treatments without a scalpel are deemed "operative plastic-surgical procedures" within the meaning of the Heilmittelwerbegesetz (HWG). Accordingly, they are subject to the strict advertising restrictions of § 11 HWG. The judgment affects not only doctors, but also alternative practitioners, cosmetologists and anyone who publicly advertises aesthetic filler or Botox services.

What was the case about?

The defendant operates a practice for aesthetic facial treatments. The services offered include, among other things, lip shaping, nose correction ("liquid rhinoplasty") and chin augmentation using hyaluronic acid fillers. Treatments with hyaluronidase (for the breakdown of hyaluronic acid) as well as botulinum toxin (Botox) are also offered. Via the practice's Instagram account, several posts published image series showing patients "before" and "after" treatment. These side-by-side comparisons were intended to highlight the visual improvement.

The plaintiff, a qualified consumer association under § 4 UKlaG, saw this as a clear violation of § 11 Abs. 1 S. 3 Nr. 1 HWG. It sent a cease-and-desist letter to the practice and demanded an injunction and reimbursement of the cease-and-desist costs. When the practice refused, the association went to court.

Particularity: In proceedings under the Unterlassungsklagengesetz (UKlaG), it is not the Regional Court (LG) that has jurisdiction in the first instance, but the Higher Regional Court (OLG). The OLG Hamm granted the claim in full and prohibited the practice from using such before-and-after images. Furthermore, it ordered the defendant to pay the cease-and-desist costs plus interest. The appeal permitted by the OLG was unsuccessful before the BGH.

The Federal Court of Justice (BGH)'s legal reasoning in detail

1. Procedural starting point

According to § 6 Abs. 2 UKlaG, an appeal (Revision) against judgments of Higher Regional Courts (OLG) that have jurisdiction in the first instance is permissible if, as here, claims under the UKlaG are involved. Consumer protection statutes within the meaning of § 2 Abs. 2 Nr. 6 UKlaG also include the provisions of the Heilmittelwerbegesetz (§§ 3–13 HWG). The plaintiff's claim for an injunction was thus directly based on § 2 Abs. 1 UKlaG i. V. m. § 11 HWG.

2. Advertising prohibition of § 11 Abs. 1 S. 3 Nr. 1 HWG

According to this provision, advertising for operative plastic-surgical procedures within the meaning of § 1 Abs. 1 Nr. 2 c HWG may not be made outside of professional circles with the effect of such treatment through comparative depiction of the bodily condition before and after the procedure.

Decisive therefore are:

• Is it an "operative plastic-surgical procedure"?
• Is the advertising taking place outside of professional circles?
• Is the effect depicted through a before-and-after comparison?

3. The concept of "operative plastic-surgical procedure"

The Federal Court of Justice (BGH) affirms this also for minimally invasive hyaluronic acid injections. The term "operative" is not limited to treatments involving a scalpel, sutures or general anaesthesia. Rather, what is decisive is that an instrument is used (here: cannula) to intervene in the body and the form or shape is altered.

The reversibility of the change – for example through natural breakdown of the filler or the use of hyaluronidase – does not change its classification as an operative procedure. Likewise, it is irrelevant whether the treatment is performed under local anaesthesia or without anaesthesia.

4. Purpose of the regulation and legislative intent

The provision is intended to curb suggestive and emotionally charged advertising for medically unnecessary aesthetic procedures. Before-and-after depictions have a particularly strong effect on consumers' decisions and can push the risks and limitations of treatment into the background. The legislator therefore explicitly prohibited this form of advertising as early as 2012 – precisely with a view to cosmetic surgery and comparable procedures.

5. Application to the specific case

The practice's Instagram posts were clearly directed at the general public and thus "outside of professional circles". The presented image series depicted the condition "before" and "after" treatment in direct comparison and suggested a clear improvement. Accordingly, the requirements of § 11 Abs. 1 S. 3 Nr. 1 HWG were fully met.

6. Balancing of fundamental rights

The defendant's freedom to practise a profession (Art. 12 Abs. 1 GG) and freedom of expression (Art. 5 Abs. 1 GG) are indeed restricted by the advertising prohibition, but the interference is constitutionally justified. The prohibition serves a legitimate purpose (protection of health, protection against inappropriate influence), is suitable and necessary, and the burden is reasonable because not all advertising is prohibited – only this particularly suggestive form.

7. No obstacles under Union law

The Federal Court of Justice (BGH) makes clear that neither the Unfair Commercial Practices Directive (UCP Directive) nor the Services Directive or the Human Medicines Code stand in the way of the application of § 11 HWG.

8. Legal consequences

The defendant must cease the objectionable advertising and reimburse the cease-and-desist costs plus interest (§ 5 UKlaG i. V. m. § 13 Abs. 3 UWG, §§ 291, 288 Abs. 1 S. 2 BGB).

Consequences for practice

The judgment leaves no doubt:

• Prohibited are all before-and-after images for aesthetic injections (hyaluronic acid, botox, hyaluronidase, etc.) in lay advertising, regardless of the medium (social media, website, print, outdoor advertising).
• Inadmissible are also indirect before-and-after formats such as image collages or 'swipe' comparisons in Instagram stories.
• Permitted remain factual information about treatments, procedures, risks – without visual before-and-after comparison.
• High risk of cease-and-desist letters exists in the case of influencer cooperations when before-and-after representations are disseminated via external profiles – these are attributed to the practice owner.

Recommendations for action

Practices and providers of aesthetic treatments should review their entire public relations activities immediately and consistently remove before-and-after formats. Existing social media cooperations should also be reviewed legally and contractually designed in such a way that violations of the § 10 Abs. 1 HWG are excluded. A current content and marketing audit is strongly recommended to avoid costly cease-and-desist letters and court proceedings.

Our support

As a law firm specializing in competition law and pharmaceutical advertising law AVANTCORE Rechtsanwälte in Stuttgart supports you in the legally compliant design of your advertising. We

• review your social media channels, websites and printed materials,
• develop customised HWG compliance guidelines,
• train your marketing and practice team,
• represent you effectively in cease-and-desist and court proceedings.

Contact us now for an initial consultation – we show you how to design your marketing strategy in a legally compliant and effective manner.