The property “mild” can only refer to the taste when it comes to tobacco advertising. According to a ruling of the Landgericht (LG) Hamburg [Regional Court of Hamburg], the advertising might otherwise be deemed misleading to consumers.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: A tobacco company had promoted a brand of cigarettes in a number of instances based on the product having a “mild” quality. The Verbraucherzentrale (Consumer Advice Centre) sought an injunction against this type of advertising.
The plaintiff objected to a total of three different advertising statements featuring the property “mild”. In one instance, “mild” explicitly referred to the taste. In relation to the other two cases, the Landgericht Hamburg granted the claim in its judgment of May 11, 2016 (Az.: 416 HKO 47/16), ruling that the statements in question were misleading.
The Court held that while the company had not exceeded the thresholds from the so-called “Mild-Abkommen” of 1980 [an industry-specific agreement that defines the quality “mild” based on the concentrations of certain substances], the promotional statements were nonetheless alarming. It went on to say that unless the term “mild” referred exclusively to the taste, this played down the health risks associated with smoking. Notwithstanding the fact that smokers may well be aware of the damaging impact of smoking, the advertising featuring the property “mild” could have the effect of dispelling concerns relating to smoking. It could give the impression that this brand of cigarettes is less harmful to one’s health. The Court took the view that consumers directly associate the term “mild” with “harmless”, a description which does not apply to smoking. It stated that due to the important attached to human health, more stringent standards need to be applied to advertising that is liable to downplay health risks. It was said that this kind of advertising is both misleading to consumers and contains statements which are prohibited because they suggest that the product is innocuous from a health perspective. The LG Hamburg concluded that if “mild” explicitly and exclusively refers to the taste then this does not constitute a misleading statement.
Advertising can often prove to be a difficult balancing act for businesses, with it always being possible for real or supposed infringements of competition law to occur. These can result in, e.g. injunction suits or claims for damages. A lawyer who is qualified in the field of competition law should be consulted for the purposes of fending off or enforcing claims.
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