Home | Room for manoeuvre and risks in the distribution of dietary supplements via licensed panel physicians (5 February 2020)

Room for manoeuvre and risks in the distribution of dietary supplements via licensed panel physicians (5 February 2020)

On the occasion of investigation proceedings by a public prosecutor’s office against a manufacturer of dietary supplements as well as licensed panel physicians on suspicion of bribery or corruptibility in the healthcare sector (§ 299a/b StGB), the attorneys Sven Hennings and Dr. Oliver Pragal highlight the risk of triggering investigation proceedings due to a punishable “referral of patients” by the doctor to the manufacturer of supplements, e.g. in the case of commission payments to the doctor in accordance with § 299a/b Nr. 3 StGB.

Indeed, the prevailing opinion and the better arguments speak against such criminal liability, as the legal materials indicate that the offence solely applies to the “referral of patients” to another service provider and not, for instance, to the manufacturer of dietary supplements. This is because in this case, the person is question is not a “patient” but rather a mere “customer”.

However, as there have not yet been any court decisions – especially not by the highest courts – the risk of criminal liability cannot be categorically ruled out.

Against this background, the attorneys point out that a licensed panel doctor is certainly allowed to operate an institute for nutritional counselling that is separate from the medical practice.

In summary, a physician who provides commercial nutritional counselling in the vicinity of their practice is not in breach of the professional code of conduct (§ 3 (2) MBO-Ä) if this commercial activity is separated from their freelance medical activities in temporal, organisational, business and legal terms. This currently prevailing legal opinion is supported by the German Federal Court of Justice (BGH), judgement of 29 May 2008 I ZR 75/05 and – as far as can be seen – similarly confirmed by the professional courts.

A doctor is thus authorized to operate a commercial institute (for nutritional counselling) in accordance with the cited conditions.

Doctors who operate an institute for nutritional counselling in a permissible manner (see sub. a above) must strictly adhere to the so-called principle of separation. Patients must be able to recognise whether they are receiving medical treatment or whether they are customers at the institute. The doctors alone are responsible for the adherence to this separation principle; only they can guarantee strict compliance with this requirement and bear responsibility in this regard.

According to the legal opinion of the attorneys, in the case of the sale of dietary supplements by the institute to its customers via its own account, there would be no risk of criminal liability under § 299a/b Nr. 3 StGB if certain requirements are met. This is because – unlike in the case of a supply contract between the supplement manufacturer and the institute as in the case of recommendations by the doctor in exchange for commission payments – there is, from the very outset, no constellation of offences that could be regarded as an unlawful agreement.

Furthermore, in this case, the criterion of an offense under § 299a/b StGB is not fulfilled, according to which the advantage “in connection with the exercise of his profession” (as a doctor) would have to be demanded.

The attorneys point out that these legal statements cannot replace legal counsel in individual cases and thus reject any liability in this regard.