German Federal Court Evaluates Before-and-After Advertising for Cosmetic Procedures

The German Federal Court (BGH) is currently assessing the legality of using before-and-after images in advertising for minimally invasive cosmetic treatments utilizing hyaluronic acid and Botox. This examination raises questions about whether such advertisements constitute 'surgical plastic interventions' under German law.

The case in question involves a lawsuit filed by the Consumer Protection Agency of North Rhine-Westphalia against Aesthetify, a company operated by the well-known influencers and doctors known as 'Dr. Rick' and 'Dr. Nick'. The agency claims that the use of comparison images on their website and Instagram violates the German Medicines Advertising Act, leading them to seek an injunction against the advertising practices.

According to the German Medicines Advertising Act, non-essential surgical plastic procedures are subject to stringent advertising regulations. The law prohibits advertising these procedures outside of professional circles through comparative depictions of a patient's physical state or appearance before and after the treatment.

In August, the Higher Regional Court (OLG) of Hamm ruled in favor of the Consumer Protection Agency, mandating Aesthetify to cease its advertising practices involving before-and-after images. During the recent oral proceedings in Karlsruhe, BGH Chairman Thomas Koch noted that the judges in Hamm had conducted a thorough review of the case, indicating that the current court's preliminary stance aligns closely with the previous ruling.

In response to the ongoing legal challenges, Dr. Nick, one of the physicians involved, stated that Aesthetify had stopped using before-and-after images for advertising purposes some time ago. He expressed regret over this decision, emphasizing the significance of such images for consumers seeking transparency and comprehensive information regarding cosmetic procedures.

Despite the cessation of these advertising methods, Dr. Rick highlighted the critical role that before-and-after images play in ensuring that potential patients are fully informed about the outcomes of treatments. The outcome of the BGH's deliberation could have significant implications for the cosmetic surgery industry in Germany, particularly regarding how practitioners can market their services in a digital age.