OLG Frankfurt am Main sets new standards for health-related advertising for food products
With its judgment of December 2, 2024, the Higher Regional Court of Frankfurt am Main (Case No. 6 U 124/24) has provided clarity regarding advertising claims for food products that suggest a specific health-related effect. In particular, the use of the term “Anti-Kater” (anti-hangover) for a product marketed as a foodstuff was at issue. The decision emphasizes the narrow limits within which health-related claims may be permitted in marketing, and highlights the regulatory requirements that food business operators must observe.
Background of the proceedings
The judgment was based on the advertising of a dietary supplement, on whose packaging and online presence the term “Anti-Kater” was prominently highlighted. The responsible distribution company thus suggested that the product could alleviate or prevent a “hangover” caused by alcohol consumption. A consumer protection association challenged this advertising design, pointing out that such health-related claims are only permitted if they are based on the current state of scientific knowledge and have been expressly approved under the Health Claims Regulation (Regulation (EC) No. 1924/2006).
Legal framework for health-related claims
Health Claims Regulation
The Health Claims Regulation governs the use of nutritional and health claims on foodstuffs throughout Europe. Such statements may only be made if they have been reviewed by the European Commission and included in a positive list. In addition to providing scientific substantiation, a specific authorization for the respective claim is particularly required for it to be permitted.
Application to the term “Anti-Kater”
The OLG Frankfurt am Main made it clear that the term “Anti-Kater” describes a specific health-related effect, namely the alleviation or prevention of symptoms after alcohol consumption. Such an advertising claim therefore falls within the scope of the Health Claims Regulation and is only permitted if there is a corresponding authorization. Since an “Anti-Kater” claim has not yet been approved and corresponding scientific evidence is lacking, the advertising must be regarded as inadmissible.
Implications for food manufacturers and distributors
Limits of creative advertising freedom
The judgment makes it clear that food business operators must proceed with particular legal caution when making promotional claims that promise relief, prevention, or cure of ailments. Even a seemingly tongue-in-cheek formulation such as “Anti-Kater” can, according to the OLG, be understood by consumers as indicating a health effect and is therefore subject to the strict requirements of the regulation.
Responsibility for the advertising message
The court also pointed out that not only explicit, but also implied and suggestive health-related statements are covered by European legislation. Simply highlighting an effect against specific ailments – in this case, a “hangover” after alcohol consumption – is in principle sufficient to constitute a health claim.
Significance of the decision for the food industry
The court’s prohibition of advertising with the term “Anti-Kater” is of considerable practical relevance for the industry. Companies are required to carefully review all statements on their products and in advertising to determine whether they are to be regarded as health-related within the meaning of the regulation. The decision of the OLG Frankfurt am Main creates additional legal certainty regarding the interpretation of health-related claims and is likely to have an impact far beyond the specific individual case.
Nevertheless, it should be noted that the legal situation and its interpretation are subject to certain developments and changes. Proceedings concerning comparable advertising concepts are continuously being decided by various courts; the final say in the assessment of health-related claims remains reserved in particular for the European Court of Justice (as of December 2024).
Conclusion and outlook
Food companies continue to face the challenge of aligning their advertising communication with regulatory requirements. The current case law tightens the duty of care and calls for restraint in making health-related statements. For market participants, it is therefore advisable to continuously review and adjust their advertising concepts.
For further legal assessments or assistance in connection with the advertising and labeling of food products, MTR Legal Rechtsanwalt is available as a contact with extensive experience.
