Is a performance claim permitted for a cosmetic device?

The case to be decided by the Higher Regional Court (OLG) Karlsruhe concerns the admissibility under competition law of advertising for a cosmetic ultrasound device. The manufacturer stated in the advertising that skin rejuvenation could be achieved with its device, among other things. A competitor considered this to be misleading and issued a cease-and-desist letter.

The parties dispute the admissibility under competition law of advertising statements in connection with the treatment of human skin using an ultrasound device.

A manufacturer of medical ultrasound devices had advertised one of its devices in commercial dealings with the performance claims 'wrinkle reduction', 'skin rejuvenation', 'quick and visible results' as well as 'tissue tightening'. Thereupon, a competitor sued it for a cease-and-desist order on the grounds of misleading advertising.

Court's decision

The OLG Karlsruhe decided by judgment of 23.11.2011, Az. 6 U 93/11 that the manufacturer must cease the advertising in the absence of substantiated scientific findings regarding the claimed performance claims.

An ultrasound device used for cosmetic purposes may only be advertised with performance claims if there are scientific proofs for such claims, which have been confirmed by independent third parties. This was not the case here. A study conceived by the managing director of the manufacturer of the corresponding devices did not meet these requirements.

Conclusion

When advertising with performance claims for cosmetic or medical devices, it must always be ensured that the corresponding applications and effects are confirmed by independent third parties. To demonstrate a lack of scientific substantiation, a competitor's assertion that the advertised performance claim is at least questioned in scientific circles may be sufficient.