Irreführung durch gesundheitsbezogene Angaben bei Lebensmitteln (English shop)

unter besonderer Berücksichtigung der Health-Claims-Verordnung

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In German law, protection against misleading health claims is regulated in § 11 LFGB. Because of the health protection associated therewith, strict requirements are imposed on the clarity and truthfulness of a claim. For disease-related claims, an absolute prohibition applies pursuant to § 12 LFGB, i.e. such claims are prohibited irrespective of whether a risk of misleading exists.

In European law, general protection against misleading practices is regulated in the Misleading Advertising Directive and the Directive on Unfair Commercial Practices as well as in the Labelling Directive. Under Art. 2 of the Labelling Directive, health-related claims are permitted in principle, whereas disease-related claims are subject to an absolute prohibition. The regulation thus corresponds to that of German law.

While the Misleading Advertising Directive merely establishes minimum standards, the Directive on Unfair Commercial Practices also establishes maximum standards of protection against misleading practices. Stricter national law is therefore inadmissible within the regulatory scope of the Misleading Advertising Directive – protection of the consumer against misleading practices.

Under the new provisions of the Health Claims Regulation, stricter standards are imposed on the admissibility of health-related claims. By contrast, claims concerning the reduction of a disease risk are – deviating from Art. 2 lit. b of the Labelling Directive – permitted under certain circumstances.

In contrast to previous European case law in the field of protection against misleading practices, the Health Claims Regulation imposes high requirements on the clarity and truthfulness of advertising statements. Deviating from the consumer model developed by European case law, strict standards are applied to the unambiguousness and comprehensibility of health-related statements. In the context of the overall assessment of a health-related claim, the information in the list of ingredients is disregarded. If a health-related claim has a misleading effect, it is not sufficient that the consumer is informed about the actual composition of a foodstuff and its health benefit only on the basis of the list of ingredients. A relevant risk of misleading nevertheless exists.

Absolute prohibitions are in principle inadmissible under both European and German case law. For they infringe the free movement of goods as well as the freedom of expression and freedom to exercise a profession of the undertaking. Therefore, the absolute prohibitions regulated in German law as well as in the Health Claims Regulation must be interpreted restrictively. Existing absolute prohibitions are to be interpreted by way of a teleological reduction to the effect that a concrete risk of misleading must exist. Only in exceptional cases are absolute prohibitions permitted on account of a particular health risk or risk of misleading.

The indeterminate legal concepts contained in German law in § 11 LFGB and § 5 UWG in conjunction with § 3 UWG are to be interpreted in the light of the now applicable provisions of the Health Claims Regulation. Therefore, stricter requirements are to be imposed on the clarity and truthfulness of health-related claims. In this regard, the points listed below under 8. are to be taken into account.

In contrast to previous European case law, the Health Claims Regulation sets strict standards for the protection of the consumer against misleading practices:

Alcoholic beverages and foodstuffs with an unfavourable nutrient profile may no longer be advertised with health-related claims. With regard to Art. 4(2), (3) subpara. 2 HCR, only nutrition claims are permitted.

If health-related claims are used, numerous additional labelling provisions must be observed. Pursuant to Art. 7 HCR, nutrition labelling is mandatory. In addition, the labelling must contain the information listed in Art. 10(2) HCR.

Non-specific claims as well as brand names are subject to stricter provisions in Art. 10(3), Art. 1(3) HCR. They are only permissible if an additional specific health-related claim is attached.

The provisions of the Health Claims Regulation deviate from the previous European consumer model. According to European case law, labelling provisions are sufficient to protect the consumer against misleading, since he has the possibility of ascertaining the composition of a foodstuff from the list of ingredients. This case law is no longer to be applied to the prohibitions on misleading in the field of health-related claims.

Pursuant to Art. 10(1) HCR, only such health-related claims are permissible as are entered in a Community list (positive list).

The requirement of an official authorisation procedure constitutes a disproportionate interference with the free movement of goods which cannot be justified on grounds of consumer protection. The Health Claims Regulation is frequently criticised on account of these strict requirements for the admissibility of health-related claims and is regarded as contrary to Community law.