11. Apr 17

BGH: Health claims in relation to mineral water need to comply with the Health Claims Regulation

Health claims in relation to mineral water need to be consistent with the Health Claims Regulation. This was confirmed by the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court, in its ruling of January 30, 2017 (Az.: I ZR 257/15).

Advertising featuring health claims pertaining to mineral water also needs to adhere to the requirements set out in the Health Claims Regulation. That was the verdict of the Bundesgerichtshof with respect to an appeal against denial of leave to appeal, also noting that the Directive on Mineral Water did not justify any exceptions. In doing so, the BGH upheld the Oberlandesgericht (OLG) Koblenz’s [Higher Regional Court of Koblenz] judgment.

In the instant case, a competition association had complained about a mineral water company’s advertising. The latter had promoted the positive qualities of calcium and magnesium in the advertising for its mineral water on its homepage, among other places. It described how calcium contributes to healthy bones, teeth and muscles, whereas magnesium supports energy metabolism and muscle function. The advertising gave the average consumer the impression that these positive statements applied to the manufacturer’s products and not magnesium and calcium in general. The competition association considered this a violation of the Health Claims Regulation, as the minimum quantities as defined by the Regulation for a “source of calcium” or “source of magnesium” had not been met. In the case of beverages, they typically need to account for 7.5 per cent of nutrient reference values per 100 ml. These values were not reached in the case of the advertised mineral water.

The BGH shared the competition association’s view, ruling that the Directive on Mineral Water did not include any special provisions on health claims which would supersede the requirements pursuant to the Health Claims Regulation. Health claims in relation to foodstuffs are only permissible if they comply with the requirements of the Health Claims Regulation. The Court went on to say that stating that a foodstuff is a mineral source is therefore only acceptable if the foodstuff in question contains the requisite amount of the relevant minerals.

Companies often walk a fine line when it comes to advertising, especially with regard to foodstuffs. Violations of competition law can give rise to formal written warnings, injunction suits as well as damages claims. Lawyers who are competent in the field of competition law can assist companies in seeing off or enforcing claims arising from violations of competition law.

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