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Licensing issues for certain types of services: massage rooms, salt caves and brain machines

Juliana Osina understands the issue of compulsory licensing of such types of services as massage and spa massage, mind machines, salt caves, explains which of them can be attributed to medical activities
The beauty and health industry is one of the largest branches of the service sector and continues to develop rapidly, attracting entrepreneurs of all levels and consumers of all ages.

In this area, massage, known even by primitive peoples, and halochambers, invented in 1984, converted into modern salt caves, and relatively new devices for audio-visual brain stimulation, known as the “Mind Machine”, remain relevant.

However, do these types of licensing services require data, and new miracle devices require certification? The answer to this question is interesting both to entrepreneurs who have decided to start a business in this area, and to consumers who want to have information about the conditions of the services they provide.

First you need to find out whether these services are medical, since medical activities are subject to mandatory licensing on the basis of paragraph 46 of part 1 of article 12 of Federal Law of May 4, 2011 No. 99-ФЗ “On licensing of certain types of activities” (hereinafter – the Law on Licensing )

In accordance with paragraph 4 of Article 2 of the Federal Law of November 21, 2011 No. 323-ФЗ “On the Basics of Protecting Citizens’ Health in the Russian Federation”, a medical service is a medical intervention or a set of medical interventions aimed at the prevention, diagnosis and treatment of diseases, medical rehabilitation and having independent finished value.

The Nomenclature of Medical Services, approved by Order of the Ministry of Health of the Russian Federation of October 13, 2017 No. 804n (hereinafter referred to as the Nomenclature), contains a list of medical services. According to paragraphs 21 and 4.1 of the Nomenclature, section “A” includes such a type of medical service as treatment with simple physical effects on the patient (massage, acupuncture, manual therapy, osteopathy). Accordingly, to provide massage services, you must obtain a license.

However, in advertising, such a concept as SPA massage is often found, and it, as will be explained below, does not require licensing. SPA massage – “massage that is carried out in a SPA environment in compliance with certain ethical and aesthetic standards in order to strengthen health, model the figure and / or correct the psycho-emotional state of the client” (paragraph 2.5.5.7 of the National Standard GOST R 55317-2012 “Services to the population. SPA services. Terms and definitions ”, approved by the Order of Rosstandart dated November 29, 2012 No. 1597-st).

It follows from clause 2.1.3 of GOST R 55317-2012 that spa technologies are a combination of methods for influencing clients in the provision of spa services, including using manual (massage, cosmetic) methods.

It should be noted that in the specified GOST there is a note regarding SPA massage, that its “distinctive feature is its use in healthy people.” Thus, spa massage does not require licensing. An entrepreneur assuming the provision of SPA massage services is required to submit a notification to the Federal Service for Supervision of Consumer Rights Protection and Human Well-Being (Rospotrebnadzor) in accordance with Decree of the Government of the Russian Federation of July 16, 2009 No. 584 “On the notification procedure for the start of certain types of entrepreneurial activity” activities. ”

With the apparent clarity of the separation of medical massage with the obligatory licensing of a massage room and spa massage with a notification of the beginning of activity, law enforcement practice is replete with judicial acts on bringing beauty salons, spa salons to administrative responsibility under Part 2 of Article 14.1 of the Code of Administrative Offenses for the implementation of paid massage services without a license to carry out medical activities (Resolution of the Arbitration Court of the Far Eastern District of January 12, 2017 No. Ф03-5891 / 2016 in case No. А24-2748 / 2016; Decision of the Seventeenth Arbitration Court of Appeal of February 1, 2019 No. 17АП-20085/2018-АК in case No. А50-31471 / 2018; Decision of the Seventh Arbitration Court of Appeal of February 12, 2019 No. 07АП-12372/2018 in case No. A45-38456 / 2018 and others).

The exotic names of the procedures do not save you from being held accountable, and the popular Thai Massage was given special attention in the Letter of the Ministry of Health of the Russian Federation dated February 20, 2013 No. 17-2 / 10 / 2-1005 on the licensing of Thai massage.

The courts are not only not ready to accept the position of entrepreneurs on the nature of the services provided in the form of SPA massage, but they also refuse to replace the fine with a warning, since “a perfect offense poses a threat to the life and health of an indefinite circle of people” and the entrepreneurs had every opportunity to comply with the Licensing Act.

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