Germany: LG Hamburg: Misleading advertising for therapeutic allergens with profitability

In its ruling of December 15, 2022 (Case No.: 406 HKO 119/22), the Regional Court of Hamburg prohibited a statutory health insurance company from providing doctors with information that incorrectly advertised the cost-effectiveness of a therapeutic allergen.

In connection with a discount agreement for a therapeutic allergen, the statutory health insurer had written to physicians claiming that the preparation was economical from the outset and that a "recourse prophylaxis" applied if it was used in accordance with the indication.

In its decision of December 15, 2022, the Regional Court of Hamburg found that the advertising statement was misleading and therefore inadmissible. It was suggested to the specialists addressed that the preparation was economical in every case, although cost-effectiveness could not be guaranteed for every individual case, considering the decision of the Hanseatic Higher Regional Court of Hamburg of June 23, 2016 (Case No.: 3 U 13/16). Economic efficiency cannot be assessed in an abstract-general manner, but must be evaluated on the basis of the individual case. According to the Hanseatic Higher Regional Court of Hamburg, in the interest of cost containment in the healthcare system, the specialist physicians addressed were aware that economic efficiency-related instruments of the drug and remedy budget as well as an economic efficiency audit had been introduced with the consequence that fee reductions or recourse claims by the Association of Statutory Health Insurance Physicians threatened if a certain volume was exceeded. An advertising statement with the content of the economic efficiency of the drug creates the impression that recourse under social law is excluded. The physicians understand the advertising statement in such a way that they are not threatened with recourse in the event of a performance audit if the preparation is prescribed on the basis of the established cost-effectiveness. They would assume that the preparation is economical in any case and that there is no threat of recourse on the part of the Association of the physicians active for the statutory health insurances due to the explicitly mentioned "recourse prophylaxis". Since this could not be determined in a generalized manner, the advertising statement was misleading and inadmissible according to § 3 HWG.