Beer cannot be promoted as “bekömmlich”, i.e. “wholesome” or “agreeable” (in terms of its digestibility). That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in a ruling from 17 May 2018 (Az.: I ZR 252/16). This description was said to be in violation of the Health Claims Regulation.
We at the commercial law firm GRP Rainer Rechtsanwälte note that the Health Claims Regulation prohibits drinks with an alcohol content of more than 1.2 per cent from featuring health claims.
The dispute before the BGH concerned a brewery’s advertising that promoted various kinds of beer with an alcohol content of more than 1.2 per cent as “bekömmlich”. A consumer protection organization had taken the view that this promotional description was unlawful and decided to file a lawsuit. The action was successful before the court of final instance.
The BGH held that when it comes to alcoholic drinks with an alcohol content of more than 1.2 per cent, health claims are prohibited as part of not only the labelling but any advertising. The Court ruled that a statement or description is not only deemed to be a health claim if it promises an improvement in health, but also if it merely suggests that consuming the food or drink in question does not have any adverse effects on health that could be associated with its consumption in other circumstances. It went on to state that consumers understand “bekömmlich” to mean “gesund” (“healthy”), “zuträglich” (“agreeable” or “beneficial”) and “leicht verdaulich” (“easily digestible”), and this gives the impression that the drink is well tolerated when consumed long term. The BGH concluded that it was not apparent from the advertising that the term “bekömmlich” refers only to the taste.
In doing so, the BGH followed the jurisprudence of the Court of Justice of the European Union (ECJ). The latter ruled as early as 2012 that ambiguous statements in relation to alcoholic drinks are unlawful. The ECJ prohibited winemakers from promoting their wine using the term “bekömmlich” on the basis of its low acidity. However, back in 2011 the BGH deemed “bekömmlich” acceptable in reference to a herbal liqueur.
Following the BGH’s more recent ruling, breweries as well as other food and drink producers will have to adjust their advertising practices. Advertising featuring health claims can easily give rise to violations of competition law, potentially resulting in formal warnings, damages claims or injunction suits. Lawyers who are versed in the field of competition law can assist businesses in fending off or enforcing claims arising from violations of competition law.