Germany recently adopted new anti-corruption laws that now criminalize “taking bribes in the health care sector” and “giving bribes in the health care sector.” These new laws have implications for certain segments of the food industry. Whenever companies collaborate with health care professionals, they must now carefully evaluate whether any benefit granted in the course of the collaboration would improperly influence health care professionals in their prescription or purchasing decisions.

Violations of anti-corruption laws may not only lead to criminal prosecution of the persons in charge, but also to confiscation of revenues.

New Criminal Offense: “Taking and Giving Bribes in the Health Care Sector”

Section 299a of the new German Criminal Code reads as follows:

Whosoever as a healthcare professional, who is required to complete a state regulated education for his professional practice or for the use of his professional title, demands, allows himself to be promised or accepts a benefit for himself or another at the exercise of his profession as consideration for providing an unfair preference in the

1.    prescription of medicinal products, remedies or tools or medical devices,

2.    purchase of medicinal products, remedies or tools or medical devices, which are intended for direct use by the health care professional or his assistant, or

3.    procurement of patients or examination material shall be liable to imprisonment of up to three years or a fine.

Section 299b of the new German Criminal Code also criminalizes the activities of the person offering or providing such benefits. Section 300 of the new German Criminal Code foresees aggravated sentences in especially serious cases.

Considerations

In addition to manufacturing drug or medical device products, many pharmaceutical or medical device companies also manufacture food supplements or dietary products that fall under the food law regimes. Such companies must follow the anti-corruption laws. When collaborating with health care professionals, companies must ensure that the granted benefit will not have any impact on the prescription or purchasing decisions of health care professionals. This applies even where the collaboration relates solely to food products or substances. If the collaborating health care professional is in a position to prescribe or purchase the medicinal products or medical devices of the collaborating company, the restrictions of Sections 299a and 299b of the German Criminal Code apply.

Therefore, companies should provide health care professionals only with benefits of fair market value in return for any services rendered. Any benefits that are provided without the receipt of appropriate consideration must not be likely to influence prescription or purchasing decisions with respect to medicinal products, remedies or tools or medical devices, or procurement of patients or examination material.

When disclosing such collaborations, companies should indicate that the granted benefit did not have any influence on the health care professional’s prescription or purchasing decisions.

Thus, it must be assessed carefully in each individual case whether a benefit granted to a health care professional is capable of improperly influencing their prescription or purchase decisions.