01. Dec 16

If it says raspberry on the outside, it should also be raspberry on the inside – Misleading consumers

Food products which give the impression that they contain ingredients when this is not in fact the case are misleading to consumers. That was the verdict of the Landgericht (LG) Amberg [Regional Court of Amberg] (Az.: 41 HKO 497/16).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Food products do not always contain the ingredients that they lead consumers to believe they do. One case in point is a fruit juice at a discount supermarket. The raspberry and rhubarb flavoured juice featured a large image of these fruits on its label. Below this were two additional notices: “Mehrfrucht-Rhabarber-Getränk mit Himbeergeschmack” [raspberry-flavoured mixed fruit and rhubarb drink] and “30% Saftgehalt aus Frucht- und Gemüsesaftkonzentraten” [30% of juice content from fruit and vegetable juice concentrates].

A closer examination of the list of ingredients revealed that the drink contained almost no rhubarb or raspberry. According to the data, it contained just 0.1% raspberry juice from raspberry juice concentrate and 0.1% rhubarb juice from rhubarb juice concentrate. The Bundesverband der Verbraucherzentrale (VZBV) [Federation of German Consumer Organisations] took the view that this is misleading to consumers, as the packaging design gives the impression that the drink contains a significant proportion of raspberry and rhubarb juice.

The Landgericht Amberg granted the injunction suit in its judgment of July 29, 2016, ruling that to refer to the drink as “Himbeer-Rhabarber” [raspberry and rhubarb] is misleading to consumers and violates both competition law and the Lebensmittelinformations-Verordnung (LMIV) [Food Information Regulation]. It stated that the average consumer would expect the drink to include a significant proportion of raspberry and rhubarb juice because of the description “Himbeer-Rhabarber” [raspberry and rhubarb], yet this was not the case at 1 per mil. This expectation was said to be strengthened by the label’s design as well as the reference to “30% Saftgehalt” [30% of juice content]. The LG went on to say that a fleeting observer would not make the distinction that rhubarb is a vegetable and thus conclude that a mixed-fruit drink would also need to include other fruits in addition to raspberries.

The Bundesgerichtshof (BGH), German’s Federal Court of Justice, had already delivered a similar verdict in December of 2015 (Az. I ZR 45/13). It held that it is not permissible for the design of a food product to mislead consumers in relation to the ingredients.

Violations of Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act] or other provisions of competition law can give rise to serious consequences. Lawyers who are versed in the field of competition law can advise on fending off and enforcing claims.

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