Healthcare marketing advertisingInstagram is more than just an app: in 2019, there were one billion users worldwide, of which around 15 million were from Germany. The app is particularly widespread among Generation Y and Z, so companies can reach this target group especially via social media and present their products or services there via this important advertising channel. Companies are increasingly using influencer marketing for advertising on Instagram or YouTube. This is a discipline of online marketing, for which companies use influencers, so-called. wide-ranging opinion leaders, serve. These personalities present products for them and indirectly promote them on Instagram and Co. Influencer marketing is so successful, among other things, because credible influencers create precisely tailored content for small target groups. Their appearance is more like a personal experience report than clumsy advertising promises. Influencer marketing is similar to the recommendation of a good friend. Therefore, meets the customer at eye level.
Influencer marketing as a vehicle for image improvement
Why should a company from the health sector opt for health marketing via Instagram and Co. Decide through influencers?
The reputation of pharmaceutical companies is poor among German patient groups. In 2018, for example, only 26% of respondents rated the reputation of the pharmaceutical industry as "excellent" or "good," according to a study by PatientView. The reasons for this critical cut-off are many and can encourage the use of social media channels to present the corporate image in a digitally reputable and trustworthy manner. Thereby the content strategy should determine all advertising channels. A closed target group approach can be used. A consistent message can draw a strong brand image that conveys a specific image. If content, formats and advertising channels are aligned and complement each other, the brand can become a trusted source of information for fitness, health and life science.
Which laws must be observed?
Health marketing by influencers must be like any other advertising for drugs, medical devices as well as procedures or. Treatment methods to the legal requirements of the German Drug Advertising Act (HWG). Comply with the Unfair Competition Act (UWG).
There is congruence between the HWG and UWG, ie. both laws are applicable side by side and the supposedly more specific HWG does not supersede the UWG, § 17 HWG.
The HWG must be observed when a specific, non-prescription product is to be advertised. The HWG is not relevant for pure image advertising. § 3 S. 1 HWG represents a general clause of advertising law. Prohibits misleading advertising in healthcare. 1 HWG represents a general clause of advertising law. Prohibits misleading advertising in the healthcare sector.
§ 3 S. 2 HWG establishes a catalog of cases in which misleading statements can be made. The term "misleading statement" refers to a statement that has the effect of a false statement on the target audience (BGHZ 13, 244 (253)). Consequently, there must be a divergence between the perception of meaning aroused in the public and reality, although actual deception need not occur. It is sufficient that the claim is capable of misleading the targeted public and influencing them in their decision.
But what does this mean in concrete terms? Each individual case must be considered separately in an overall view, because the case law is not stringent due to a constant change in public perceptions. The decisive factor is the overall impression that an advertising claim makes on the target audience. This overall impression must be interpreted.
In addition to the prohibitions under Section 3 HWG, Section 11 HWG must frequently be examined. The norm represents a prohibition for certain forms of advertising outside of the professional circles, sog. Advertising to the general public.
Furthermore, the planned advertising must be in conformity with the provisions of the UWG. The UWG protects competitors, consumers and other market participants from unfair business practices, so that no specific product has to be advertised for its applicability. More generally, the law is intended to protect against undistorted competition.
Sections 3 and 5 of the UWG are worthy of note. A violation of § 3 i.V.m. § Section 3a UWG comes into consideration in the event of a violation under a norm regulating market conduct. Sections 5, 5a UWG standardize the prohibition of misleading statements under competition law. The standard states that misleading commercial actions are unfair if they are capable of inducing consumers or other market participants to make commercial decisions that they would not otherwise have made.
Inadmissible examples from practice
The law on advertising of medicinal products is strongly characterized by individual case examples from practice, against which one's own planned advertising strategy can be measured. The following statements, for example, were judged to be inadmissible:
"Excellently judged by science and …" "You, too, will be thrilled" "Targeted help for all chronic diseases" "We'll make you slim" "Successes can be seen in all diseases of the stomach, all "100% effective" "You feel like newborn" "For pain of all kinds" "Absolutely safe to lose weight"
What is the threat in case of violation?
Violation of the HWG may result in warnings from competitors or associations. An advertising campaign that violates § 3 HWG is a criminal offense that can be punished with a fine or imprisonment. Violations of other norms from the HWG can be judged as an administrative offense, which can be punished with a fine. Advertising material that violates the provisions of the HWG can be confiscated.
The UWG sanctions violations in a first step u.a. with a claim to cease and desist, a claim for damages or a claim for the recovery of profits. Furthermore, punishable advertising according to § 16 UWG can be punished with a prison sentence of up to two years or with a fine. The law also provides for fines of up to € 300.000 before.
Conclusion on influencer marketing
Content marketing will be indispensable alongside traditional advertising formats in 2020. The digital space reaches far more differentiated target groups than classical advertising, because with the help of cookies, browser and device identification, the surfing behavior of users is analyzed and thus personalized advertising is possible.
Feel free to contact us if you are planning a new marketing campaign in the health or fitness sector, digital or analogue. We would be happy to review your campaign and/or your new product brochure for legal admissibility, so that you can avoid warnings, fines or penalties and your advertising achieves the desired success.