Unfair advertising with perfect teeth

Do consumers take advertising featuring "perfect teeth" at face value or do they recognise it as advertising hyperbole? In the view of the Higher Regional Court (OLG) Frankfurt a. Main, consumers are somewhat too dazzled by the radiance of advertising with perfect teeth and are thus misled.

An orthodontist promoted an "Invisalign" aligner system on his website as follows:"(...) is a cost-effective individual braces system for people who have little time and yet want to have perfect teeth. You can see immediately at the first appointment what results you can achieve within 6 months."A competitor took action against the orthodontist. The allegation was that, contrary to the Healing Methods Advertising Act (HWG), the orthodontist had created the impression that success of the advertised treatment could be expected with certainty.

The Regional Court (LG) Frankfurt a. M. initially prohibited advertising with this advertising message by issuing a preliminary injunction. Following an objection filed against it, the Regional Court (judgment of 18.09.2019, Az. 3-08 O 68/19) however rescinded the preliminary injunction.

In its reasoning, the Regional Court stated that the advertising orthodontist did not falsely create the impression that success ("perfect teeth") could be expected with certainty. In this respect, it was not an objective factual claim, but merely a statement of opinion. Incidentally, there was clearly advertising hyperbole.

By appeal of the competitor, the dispute was ultimately referred to the Higher Regional Court (OLG) Frankfurt a. M. for decision.

Higher Regional Court (OLG) Frankfurt on advertising with perfect teeth

The Higher Regional Court (OLG) Frankfurt a. M. (Urt. v. 27.02.2020, Az. 6 U 219/19) established that advertising with "perfect teeth" is unfair. The impression was falsely created that the success of the treatment ("perfect teeth") could be expected with certainty.

Advertising in the healthcare sector is subject to certain limits set by both the Act Against Unfair Competition (UWG) and the Healing Methods Advertising Act (HWG). In particular, the HWG regulates that misleading advertising is present in particular when the false impression is created that success can be expected with certainty.

This provision is also a market conduct rule, so that a breach isunder competition law subject to cease-and-desist letters and judicial prosecution.

The standard for assessing an advertising statement is how the addressed audience understands the advertisement. In the case of advertising whose content is objectively verifiable in whole or in part, but which the audience evaluates as advertising hyperbole, there may be no misleading element if the audience does not take the statements seriously as factual claims. This is particularly applicable when (and the more) subjective assessments and valuations are evidently underlying the advertising statement.

Advertising with "perfect teeth" = advertising hyperbole?

The lower court was incorrect in assuming that advertising with "perfect teeth" was a purely subjective statement of opinion. Although the perfection of teeth cannot be completely objectified, the advertising statement nonetheless contains an objective factual core which at the same time comprises a promise of success.

Furthermore, the addressed audience does not understand advertising with "perfect teeth" as mere advertising hyperbole. The consumer accords physicians special trust and therefore assumes a certain objectivity and restraint in advertising statements. He attributes a certain authority to their statements and is therefore less inclined to assume mere advertising hyperbole.

Thus, consumers take such statements that are open to doubt seriously, and the same applies to advertising with perfect teeth.

Conclusion

Misleading advertising under the Healing Methods Advertising Act is present in particular when the false impression is created that medical success can be expected with certainty. Caution is therefore advised when advertising with corresponding statements if one wishes to avoid competition law disputes.