Free Consultation
as a promotional
gift.
Free Consultation
as a promotional
gift.
by
Is a provider of medical treatments allowed to attract patients by offering a “100% free consultation”? And does it matter whether a doctor or a nutritionist is on the phone? The Higher Regional Court of Frankfurt am Main has classified the free consultation offered by a provider of obesity treatments as a prohibited promotional gift.
Losing Weight with a “100% Free Consultation”
Two companies were competing in the market for obesity therapy—that is, the treatment of morbid obesity. One specializes in procedures such as gastric sleeve surgery and minimally invasive gastric surgeries. The other markets similar services in the field of medically supervised weight loss through its website.
On this website, the company prominently advertised itself with three statements. They read: “100% free consultation,” “We’re happy to provide you with detailed advice—100% free,” and “Consultations at X are 100% free.” The text stated that the weight management specialists were happy to advise on treatment options. Interested parties could schedule an appointment by phone or via a contact form.
Among other treatments, the site highlighted a non-surgical gastric reduction and a gastric balloon that is inserted via gastroscopy. Users could select locations and doctors from the menu bar. There was no mention of dietitians on the site.
What the competitor objected to
The competitor viewed the advertisement as a violation of the Medicinal Products Advertising Act. According to the court’s ruling, this law also covers advertising for the treatment of medical conditions. The law generally prohibits offering, announcing, or granting incentives or other promotional gifts. Exceptions apply, for example, to small items of negligible value and to incentives consisting of the provision of information or advice.
The competitor filed a motion for a preliminary injunction—that is, a provisional ruling in summary proceedings. The Frankfurt am Main Regional Court dismissed the motion in this regard. While the free consultation was indeed a promotional gift, it was permitted as an exception because it consisted of information and advice. Furthermore, it was not provided by doctors and was not advertised as a medical service.
On appeal, the competitor submitted a recording of a test consultation conducted over the phone. According to the competitor’s account, the conversation was followed by cost estimates, financing offers, a treatment proposal along with a contract, and an invoice for 11,500 euros. The advertising company considered this account to be submitted too late. The Higher Regional Court did not address the test consultation in its reasoning.
Frankfurt Higher Regional Court Prohibits the Advertisement
In its ruling dated September 10, 2026—Case No. 6 U 60/26— the Higher Regional Court granted the appeal. It prohibited the company from advertising medical services for the treatment of obesity using the three statements in question.
Does it matter who actually provides the advice?
In the court’s view, that is irrelevant. The sole issue in the proceedings is that the company advertised free advice. Whether it actually provided it later is not decisive. Therefore, the only relevant factor is what kind of advice the targeted audience would expect based on the advertisement.
This audience consists of people with obesity requiring treatment. Based on their overall impression of the website, they expected a medical consultation. The procedures advertised are reserved for doctors. The menu bar lists doctors, but no non-medical staff. Furthermore, every patient expects that only a doctor can provide well-informed and reliable advice on procedures and alternatives.
Thus, the Regional Court’s argument does not hold up. The fact that, in reality, non-physicians were answering the phone did not help the company.
Why is a free consultation a gift?
The concept of a promotional gift should be interpreted broadly. It encompasses any benefit that the recipient regards as free of charge and thus as a gift.
Patients should assume that this involves a private medical consultation, which must be paid for in accordance with the Schedule of Fees for Physicians. The mere mention of possible financing for the treatment already suggests this. Anyone who receives such a consultation free of charge receives a monetary benefit. Whether this constitutes a primary or secondary service is irrelevant for this first stage.
Why doesn’t the exception for advice apply?
This is the crux of the decision. According to the wording of the law, benefits consisting of information or advice are permitted. A consultation consists precisely of that. The Regional Court had relied on this wording. The Higher Regional Court sees it differently.
Contrary to the Regional Court’s opinion, free medical consultation therefore does not fall under the exception […], because—whether as part of medical treatment services or as a standalone treatment service—it constitutes a primary medical service and not an ancillary service provided in addition to a (primary) service.
The Senate itself acknowledges that, based on the wording, this result initially appears contradictory. The consultation would be prohibited because it is a consultation, and at the same time permitted because it is a consultation. The court resolves this contradiction by assuming that the legislature made a drafting error.
The exception stems from the former Bonus Regulation. That regulation permitted information and advice only as a bonus—that is, as an ancillary benefit in addition to a primary benefit. After the Bonus Regulation was repealed, the legislature merely incorporated the exceptions into the Medicinal Products Advertising Act without intending to change the legal situation. The court cites the legislative history in support of this and considers itself to be in line with earlier decisions by the Higher Regional Courts of Hamburg and Munich.
Conclusion
The ban on gifts is intended to prevent promotional gifts from unduly influencing the decision to undergo medical treatment. A free consultation intended to lead to a treatment agreement is an obvious example of this. In addition, competition law always raises the issue of misleading advertising in connection with such offers. We addressed this in an earlier post on advertising with the term “free.”
We view the reasoning based on an editorial error with skepticism. The court is adding a criterion to the exception that is not included in the text of the law. Since the repeal of the Bonus Regulation, the legislature has had the opportunity to correct the wording.
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