May soon only specialists remove tattoos?
Definitely no! The ministerial draft has not been approved.
Update: please note our new article
Since September 05th, 2018, it has been clear who can continue to use lasers for tattoo removal. You can find the corresponding article with this link.
Which draft bill - again a new law?
It is planned to modernize the already existing radiation protection law.
Ok, what's so problematic about the new Radiation Protection Act?
Thus, the draft bill of the new Radiation Protection Act on page 214 under § 5 para. 2 provides the following:
Ablative laser applications or applications in which the integrity of the epidermis as a protective barrier is violated, the treatment of vascular changes and pigmented lesions, the removal of tattoos or permanent make-up, and applications with optical radiation whose effects are not limited to the skin and its appendages are, like fat tissue reduction, may only be carried out by
1. one Specialist or a specialist in skin diseases,
2. one Specialist or a specialist in plastic and aesthetic surgery or
3. Personnel with specialist knowledge under the direct supervision and responsibility of a specialist in skin diseases or in plastic and aesthetic surgery.
Accordingly, only specialists for skin diseases or specialists for plastic and aesthetic surgery or their staff should use a laser to remove tattoos on the patient.
We have often been asked if this is not a compulsory expropriation for existing tattoo removal studios. Hereupon answer: No! Rather, the law is an interference with the freedom of occupation according to Art. 12 Abs. 1 Basic Law.
Is this interference in occupational freedom permissible?
The question is not easy to answer. For general answers to such questions, the Federal Constitutional Court uses the 3 level theory.
According to this, a differentiation must be made between the rules on professional practice (1 level), subjective career choices (2 level) and objective career choices (3 level). With each stage, the intensity of engagement increases. This increase in intensity of intervention also leads to a decrease in the freedom of the legislator, in this case the draft bill. One can therefore derive the principle - the more intense the intervention, the higher the justification hurdles.
And what do the individual stages say in this case?
1. Level: Occupational Exercise Regulations:
Here the "how" questioned. Exercise rules on the 1. Level is then permissible, as long as reasonable considerations of the common good make them appear appropriate.
In the present case, this would be, for example, a rule that radiation protection goggles must be worn during each laser treatment. Consequently, the proposed draft bill (at least in the case of the aforementioned § 5 para. 2) is not relevant at this stage.
2. Level: subjective career choices:
This level ties in with conditions that must lie in a person - ie personal qualities, abilities, knowledge etc.
These are subjective admission requirements which must be present in order to reduce the abstract danger for an important community property.
But what does this mean?
Well, the legislator wants to prevent the above-mentioned important common good "health" by (supposedly) unqualified laser treatments is endangered.
Can not only non-medical practitioners and doctors use such a laser anyway?
Yes and no. Since the admission is a national matter, it may look different from state to state. One of the strictest regulations known to us can be found in the state of Thuringia. It has been known for years that only naturopaths and doctors are allowed to remove a tattoo by laser. But that is precisely why the legislator apparently needs to provide further protection for the patients of the tattoo removal studios.
So that means that there is an interference with Art. 12 Abs. 1 Basic Law?
Exactly! The presenter's draft - should he come into force in this form - will be in the 2. Intervene step.
Is not that something over the target?
This can be arguably disputed. It can be argued that an unskilled force should not use a laser. For a naturopath or medical doctor, however, this looks quite different. Both have years of training and are well versed with any skin diseases and complications. Furthermore, the state of the art must not be disregarded. Particularly in the area of picosecond technology, manufacturers such as Cynosure or PicoSure offer sophisticated devices that reduce the level of complications that may occur to a minimum.
But I still want to run a tattoo removal studio. What would I advise in a specific case?
In any case, you should make up your training as a naturopath. In our opinion, it is only a matter of time before this (minimum) requirement will be demanded in all other federal states.
Is there otherwise a way to defend against the coming law?
Yes, you could attack this law (if it comes into effect) with a constitutional complaint. The hurdles for this, however, are very high.
What do I do with my laser when the law comes into effect?
If you are a specialist in skin diseases or plastic and aesthetic surgery, you have no problem anyway.
In all other cases it is called damage limitation! If you do not know the appropriate specialist who would like to operate the device for you, you should check the dissolution of the (in most cases) leasing contract with your manufacturer or seller.
There are numerous possibilities in the law of a dissolution, a resignation or a reversal - enforce - also judicially. So be here for example § 313 para. 1 BGB mentioned.
If you have any questions about this topic, please contact us Attorney Stephen Hendel always available.
