Health claims in relation to foods and foodstuffs are only permitted if they do not violate the Health Claims Regulation. This was reaffirmed by the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court (Az.: I ZR 167/16).

When it comes to advertising on foods and foodstuffs featuring health claims, businesses need to make sure that the statements comply with the Health Claims Regulation. The health claims must refer to the substance and not the product, or the positive effect claimed has to have been scientifically proven. We at the commercial law firm GRP Rainer Rechtsanwälte note that the advertising is otherwise in violation of the Health Claims Regulation as well as competition law.

In a judgment from December 6, 2017, the Bundesgerichtshof clarified once again that the term “detox” represents a specific health claim and dismissed an appeal lodged by a tea producer against a ruling from the Oberlandesgericht (OLG) Bamberg, Bamberg’s Higher Regional Court (Az.: 3 U 32/16). The tea producer had promoted two herbal tea blends using the term “detox”. A competition association brought an action against this, arguing that the term was misleading and an impermissible health claim. The OLG Bamberg granted the action.

The Court stated that the term “detox” would give the average consumer the impression that the tea has a detoxifying effect and improves the state of one’s health. It was said to represent a specific health claim that was impermissible in the absence of scientific evidence. The appeal against the ruling was dismissed by the BGH. It held that the term “detox” is not merely a general reference to health benefits but rather a specific health claim.

The BGH went on to say that if consumers understand the detoxifying effect on the body attributed to the products by the term in question to be physiological in nature and there is in fact no such effect and it therefore cannot be scientifically proven, then such specific health claims are impermissible.

Regarding the question of whether marketing teas using the term “detox” can be reconciled with the Health Claims Regulation, the BGH concluded with reference to the judgments of the OLG Celle and OLG Düsseldorf that there is now an established line of case law.

When it comes to advertising featuring health claims, violations of competition law are easily committed. These can result in formal warnings, damages claims or injunction suits. Lawyers who are versed in the field of competition law can assist businesses in fending off as well as enforcing claims arising from violations of competition law.

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