PAYBACK points when purchasing hearing aids – Limits of permissibility
In its decision dated 18 July 2024 (Case No. I ZR 43/24), the Federal Court of Justice (BGH) made a significant ruling regarding the permissibility of bonus systems in connection with the purchase of hearing aids. According to the decision, hearing aid acousticians are not permitted to grant PAYBACK points or comparable monetary benefits with a total value of more than one euro per purchase transaction. This decision builds on the strict price regulations for medical devices and clarifies the legal framework for distribution and marketing strategies in the healthcare sector.
Legal basis of the decision
Price regulation and the German Act on Advertising in the Healthcare Sector (HWG)
The starting point for prohibiting the extensive allocation of bonus points was the link between price regulation provisions for medical devices, in particular hearing aids, and the provisions of the Act on Advertising in the Healthcare Sector (HWG). Hearing aids are classified as medical aids and are thus subject to legal requirements analogous to those for pharmacy-only medicines. By imposing strict limitations on advertising and discounting practices in this area, the legislator aims to protect the interests of the insured and uphold the integrity of the pricing structure in the healthcare sector. Exceeding the explicit threshold of one euro for promotional gifts, as set out in Section 7 (1) sentence 1 no. 1 HWG, is therefore generally not permitted.
Impact on competition and pricing
The granting of PAYBACK points, which can be converted directly into monetary benefits, is considered a monetary advantage within the meaning of the HWG. As soon as this benefit exceeds the de minimis threshold of one euro, there is a violation of the applicable advertising restrictions. With this decision, the BGH follows its established case law on advertising incentives in the pharmaceutical and medical aids market and emphasizes the importance of fair market conditions; particularly in the area of sensitive medical devices, price competition is to be systematically restricted by bonus programs.
Significance for hearing aid acousticians and providers of health technologies
Sales practice and compliance requirements
For acoustics businesses and providers of comparable medical devices, this case law establishes clear regulatory guidelines. Marketing strategies that rely on discount systems and customer loyalty programs must strictly adhere to the permissible de minimis limit. This affects not only existing business models but also future contract structures and cooperation with service providers in the area of customer management. Exceeding the maximum limit may lead to claims for injunctive relief under competition law as well as official measures.
Relevance for franchise and chain store systems
The BGH decision affects not only individual hearing aid acousticians, but also applies to all market participants who use similar bonus systems within contractual networks – such as franchise systems or chain store structures. A nationwide uniform implementation of the DE MINIMIS LIMIT is therefore advisable in order to minimize legal risks and ensure consistent compliance.
Impact on marketing in the healthcare sector
Different assessment depending on product segments
The BGH makes it clear that the legal evaluation of customer loyalty programs strongly depends on the respective product segment. While PAYBACK bonuses are permitted as an integral part of customer engagement in traditional retail, heightened due diligence requirements apply in the provision of medical aids. The decision therefore confirms the special status of the healthcare market in the German legal system.
Significance for insured persons and consumers
Consumers’ interest in attractive bonuses must be reconciled with the protection of price regulation in the healthcare market. By limiting incentives to end customers, a contribution is made to promoting the quality of advice and service provision as well as transparency in pricing.
Conclusion
The current decision provides important guidance for structuring bonus and discount systems in the field of medical aids provision. Market participants are well advised to closely monitor the requirements of the BGH and the regulatory conditions. If you have questions regarding the interpretation of the current case law, the adaptation of existing customer loyalty programs, or other distribution law matters in the healthcare sector, the Rechtsanwalt at MTR Legal are available to provide legal assessment and expert clarification.
