Do consumers take advertising with "perfect teeth" at face value or do they recognize an advertising exaggeration? According to the Higher Regional Court of Frankfurt am Main, consumers are somewhat too dazzled by the appeal of advertising with perfect teeth and are therefore misled.
- An orthodontist advertised an "Invisalign" dental splint system on his website as follows:"(...) is a cost-effective customized brace for people who have little time and still want to have perfect teeth. You can see immediately at the first appointment what results you can achieve within 6 months."
A competitor took legal action against the orthodontist. The accusation was that the orthodontist had given the impression that the advertised treatment could be expected to be successful with certainty, contrary to the Therapeutic Products Advertising Act (HWG).
- The Regional Court of Frankfurt am Main had initially issued a temporary injunction prohibiting advertising with this claim. However, in response to the objection lodged against this, the Regional Court (judgment of 18.09.2019, ref. 3-08 O 68/19) lifted the 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 statement of fact, but merely a value judgment. In addition, there is a recognizable exaggeration in the advertising.
- Following an appeal by the competitor, the dispute was finally submitted to the Higher Regional Court of Frankfurt am Main for a decision.
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OLG Frankfurt on advertising with perfect teeth
The OLG Frankfurt a. M. (Judgement of. 27.02.2020, Ref. 6 U 219/19) found that advertising with "perfect teeth" is anti-competitive. It falsely gave the impression that the success of the treatment ("perfect teeth") could be expected with certainty.
Both the Unfair Competition Act (UWG) and the Therapeutic Products Advertising Act (HWG) impose certain limits on advertising in the healthcare sector. Among other things, the HWG stipulates that advertising is misleading in particular if the impression is falsely created that success can be expected with certainty.
This provision is also a market conduct regulation, meaning that a violation of the competition law can be warned and prosecuted.
- The decisive factor for the assessment of an advertising statement is how the relevant public understands the advertising. In the case of advertising whose content can be objectively verified in whole or in part, but which the public interprets as advertising exaggerations, there may be a lack of misleading advertising if the public does not take the information seriously as a factual claim. This is particularly the case if (and the more) subjective assessments and evaluations are recognizably underlying the advertising statement.
Advertising with "perfect teeth" = advertising exaggeration?
The lower court wrongly assumed that the advertising with "perfect teeth" was a purely subjective value judgment. Although the perfection of teeth could not be completely objectified, the advertising statement nevertheless contained an objective factual core that also contained a promise of success.
Furthermore, the target public does not understand advertising with "perfect teeth" as mere advertising exaggeration. The consumer places particular trust in doctors and therefore assumes a certain objectivity and restraint in advertising claims. They attribute a certain authority to their statements and are therefore less inclined to assume that they are mere advertising exaggerations.
Consumers would therefore take such claims seriously in case of doubt, which could also be assumed for advertising with perfect teeth.
Conclusion
According to the Therapeutic Products Advertising Act, advertising is particularly misleading if it falsely gives the impression that medical success can be expected with certainty. Caution is therefore required when advertising with such statements if you want to avoid disputes under competition law.
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