Advertising rights for doctors

The generally applicable advertising ban of earlier times has now been converted into an advertising right. What today can be regarded as "permissible advertising" is judged "by the general public's perception". As a result, a doctor is at liberty to refer to his services in an appropriate manner. In doing so, he will satisfy an existing interest in information which has been brought to his attention.

Professional legal requirements:The model professional code of conduct of the German Medical Association (MBO) stipulates in § 27 para.1 that this provision ensures patient protection through "appropriate and adequate" information and avoids commercialisation of the medical profession. This regulation allows physicians to provide "factual, profession-related information" (§ 27 para. 2 MBO). On the other hand, this provision prohibits advertising that is contrary to the profession (Section 27 para. 3 MBO).

Medical advertising measures must be able to withstand the scrutiny of the respective professional regulations of the state medical associations. These are based on the model professional regulations of the German Medical Association (MBO). Medical advertising measures must also comply with the German Law on the Advertising of Therapeutic Products (HWG) and the Law against Unfair Competition (UWG). Factual, professional information is permitted.

Advertising contrary to the profession is prohibited (decision of the Federal Constitutional Court of 18.2.2002 - Az. 1 BvR 1644/01): Not permitted is " excessive or blatant advertising". Possible advertising media are magazines, advertising pillars, advertising posters, flyers, advertising posters on subways, trams and buses. Even a shopping trolley is an admissible advertising medium (VG Minden of 14.1.2009, Az: 7K 39/08: unprofessional advertising cannot be justified solely by the fact that an advertising medium which is admissible per se is used in a "commercial space" of a supermarket). Professional misconduct is defined by the MBO in § 27 (3). According to this provision, " unlawful advertising is, above all, advertising which is laudatory, misleading or comparative".

• Promotional advertising is prohibited: Promotional advertising is an intensified form of advertising, especially advertising with "lurid and blatant means". This can already be the case if the information does not mean anything to the patient as addressee or at least has no objectively verifiable content.
• Comparative advertising is prohibited: According to paragraph 27, section 3 MBO, the law governing the medical profession prohibits doctors from any comparative advertising. Comparative" is defined as advertising which directly or indirectly identifies a competitor or the goods or services offered by a competitor.
• Misleading advertising is prohibited: it is when false or deceptive information is given about a person, about his or her role models or qualifications or about his or her successes. Deception is the creation of a false image that does not correspond to reality.
• Advertising in work clothes is possible.
• Before and after pictures are possible. They are only forbidden if they are made "in an abusive, repulsive or misleading manner". According to this regulation, advertising can be done with before and after pictures. Excluded from this are surgical plastic surgery procedures for which § 11 Ab. 1 S.3 HWG applies. This prohibits advertising with the effect of an operative plastic surgery operation by comparative depiction of the body condition or appearance before and after the operation.
• Presentations of medical histories are possible: they remain prohibited only if they are abusive, repulsive or misleading.

Lit:

1. (Model) professional code of conduct for doctors working in Germany (status 2011). http://www.bundesaerztekammer.de/page.asp?his=1.100.1143
2. Sauerbier, C (2014) Advertising gets under the skin. Skin 4:204-209