1 October 2015Jurisdiction reportsJens Künzel

Germany: Health claims run into trouble

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.

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