The 1. Civil Senate of the Federal Supreme Court, which is, among others, responsible for competition law, confirmed with its decision of May 17, 2018, (Ref.: I ZR 252/16) the prior instance decisions of the Higher Regional Court of Stuttgart (appeal decision of November 03, 2016; Ref.: 2 U 37/16) and Regional Court of Ravensburg (decision of August 25, 2015; Ref.: 8 O 51/15 KfH), according to which advertising beer with an alcohol content of more than 1.2 volume percent as “digestible” constitutes an inadmissible health-related statement.
The defendant operates a brewery, which primarily sells beer in Upper Swabia, Allgäu and at the east coast of Lake Constance. The legal disputes started with an online advertisement by the defendant, in which three beer types were advertised with the statement “digestible”, such as:
A Berlin competition association opposed the advertisement, on the grounds that the term “digestible” is a health-related statement within the meaning of article 2 paragraph 2 number 5 of the regulation (EG) No. 1924/2006 about nutritious- and health-related statements on food and is inadmissible in advertising alcoholic beverages with more than 1.2 volume percent, according to article 4 paragraph 3 of the regulation (EG) No. 1924/2006. The association sent a cease and desist letter to the defendant, however without success, and filed an action for cease and desist and for reimbursement of the costs against the defendant.
The Federal Supreme Court decided that in relation to alcoholic beverages with more than 1.2 volume percent, health-related statements are not only prohibited on the labeling of the products but also in the advertisement of such beverages, pursuant to article 4 paragraph 3 of the regulation (EG) No. 1924/2006. A “health-related statement” is a statement that promises an improvement of health thanks to the consumption of such food. A statement is also health-related if it expresses that the consumption of the food does not have any health-damaging consequences, which may occur when consuming the food in other cases. According to the appellate court’s observations, the term “digestible” is understood as “healthy”, “beneficial” and “easy to digest” by the relevant public. When used in connection with food, the term expresses that the food is well accepted by the digestive system and – even when permanently consumed – is well tolerated. According to the appellate court’s observations, this term is understood this way also in connection with the advertisement objected. As per the court’s point of view, it is not clear from the advertisement whether the term “digestible” describes the taste of the beer.
The relevant regulations for the decision are:
Article 2 paragraph 2 number 5 of the regulation (EG) no. 1924/2006: The expression “health-related statement” describes every statement with which it is declared, suggested or only indirectly expressed that there is a connection between a food category, food or its ingredients on one hand and health on the other hand.
Article 4 paragraph 3 letter a of regulation (EG) no. 1924/2006: Beverages with an alcohol content of more than 1.2 volume percent shall not have any health-related statement.