Many German children are familiar with a dairy dessert called Monsterbacke. For a long time the manufacturer of this dessert, Ehrmann, advertised it using the slogan “As important as your daily glass of milk!”.
Germany’s Central Association for Fighting Unfair Competition asserted that this claim breached EU Regulation No. 1924/2006 on nutrition and health claims made on foods, and requested that Ehrmann had to discontinue the slogan.
The Stuttgart Court of Appeal did not think that the slogan qualified as either a nutrition or a health claim. However, the court held that the slogan was misleading as consumers might think that the dessert had advantages for human nutrition compared to milk when consumed daily. The court therefore unconditionally prohibited the use of the slogan.
In 2012, the case came before the Federal Court of Justice (Bundesgerichtshof). This court had a different view on the question of whether the slogan qualified as a health claim. It was uncertain about whether the manufacturer was entitled to continue using the slogan if, in addition to the slogan, certain health information was given (as provided in article 10[2] of the regulation). It referred the legal question of whether article 10(2) of was applicable in 2010, when the slogan was last advertised, to the Court of Justice of the European Union (CJEU). The CJEU held in 2014 that article 10(2) had been applicable in 2010.
In 2015, the Bundesgerichtshof again heard the case and decided that an unconditional ban of the slogan based on the regulation could not stand. It also decided that the slogan did not mislead the public about the nutrition values of the dessert in comparison to milk. As for the latter issue, the Bundesgerichtshof employed a more liberal view of the public and its knowledge of the contents of milk and desserts such as Monsterbacke.
It presumed that the public knew these desserts were fundamentally different from milk and also had more sugar. So the public could not be presumed to understand the slogan to mean that milk and the dessert had health or nutritional advantages compared to milk in all respects; rather the public inferred from the term ‘important’ that the slogan referred to the main characteristic of milk, which is that it contains calcium—commonly known as being advantageous for the building of human bones. In that respect, the dessert was held to be comparable to milk in that it contained even more calcium, so that the expectations of the public were not disappointed.
"The Bundesgerichtshof employed a more liberal view of the public and its knowledge of the contents of milk and desserts such as Monsterbacke."
The Bundesgerichtshof ruled that the slogan qualified as a health claim according to the regulation, ie, a claim “that states, suggests or implies that a relationship exists between a food category, a food or one of its constituents and health”. The term ‘relationship’ was to be construed broadly so that it covered any claim that implied an improvement of health as a result of enjoying the food in question. Since consumers assumed that milk was advantageous to the health, particularly of children, and the slogan played on this common perception of milk, consumers were led to transfer this perception also to the dessert Monsterbacke. That implied a relationship between the food and health.
However, the qualification as a health claim does not automatically mean that the claim may be unconditionally prohibited. The court held that it could be prohibited only insofar as the information provided in article 10(2) of the regulation was not given. This information shall include, inter alia, a statement indicating the importance of a varied and balanced diet and a healthy lifestyle. Whether requiring the defendant to observe one or more of the information duties is appropriate in this case has to be decided again by the Stuttgart Court of Appeal. The case was remanded back to the appeals court to decide whether the plaintiff’s auxiliary motions (directed at a conditional ban of the slogan if used without the required additional information) are founded.
Jens Künzel is a partner at Krieger Mes & Graf v. der Groeben. He can be contacted at: jens.kuenzel@krieger-mes.de
Jens Künzel, Krieger Mes & Graf v. der Groeben, CJEU, milk, sugar,
