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BGH on illegal health claims in the context of advertising food items

August 2017

In its ruling of March 29, 2017, the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, clarified once again that health claims cannot pertain to products and must relate to substances (Az.: I ZR 71/16).

When it comes to promoting foods and foodstuffs with health claims, companies must take care to ensure that the claims do not relate to the product as a whole but instead refer to specific ingredients with respect to which the statement has been approved or the statements are supported by sufficient scientific evidence. Otherwise, we at the commercial law firm GRP Rainer Rechtsanwälte note that such claims may violate the Health Claims Regulation as well as competition law.

In its judgment of March 10, 2016, the Oberlandesgericht (OLG) Celle [Higher Regional Court of Celle] had prohibited a tea producer from using the term “detox” as a health claim in relation to a herbal tea comprising various ingredients including stinging nettle, green tea, peppermint and several others (Az.: 13 U 77/15), but granted leave to appeal to the BGH. The Bundesgerichtshof’s 1st Civil Panel strongly indicated in its ruling of March 29, 2017 that it intended to dismiss the appeal.

The Panel clarified that health claims pertaining to foods and foodstuffs are only allowed to refer to substances and not the product as a whole. In the instant case, the herbal tea consisting of up to 20 per cent stinging nettle and green tea each had been promoted using the term “detox”. According to the Panel, consumers were said to perceive “detox” as a health claim. It went on to say that there is always a presumption that a statement or term is a health claim if it is implied that consuming the food item in question will lead to an improved state of health. It was said that the term “detox” would be understood as referring to the entire product and not merely the ingredients stinging nettle and green tea. The BGH followed the OLG Celle’s line of reasoning. Appeal proceedings have since been settled by way of a ruling from June 13, 2017 dismissing them.

Advertising is often a bit of a tightrope walk for businesses, it being possible for violations of competition law to occur. This is particularly true in relation to advertising and statements pertaining to foods. Violations can give rise to formal warnings, damages claims and injunction suits. Lawyers who are versed in the field of competition law can assist companies in fending off or enforcing claims arising from violations of competition law.

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