Advertising claims about concentration in focus of fairness law
Advertising for food and beverages is subject to strict fairness law requirements. This is especially true when statements are used that give the targeted audience the impression that the product can measurably improve mental performance – such as attention or concentration. A court prohibited an energy drink manufacturer from advertising with corresponding concentration promises after the statements were challenged as misleading. The basis of the report is the original article from JuraForum (Source: https://www.juraforum.de/news/energydrink-hersteller-taeuscht-gamer-gericht-verbietet-werbung-mit-konzentrationsversprechen_258843).
Challenged address of a gamer-related target group
Advertising with performance promises in the gaming context
According to the reported facts, the manufacturer’s communication was specifically targeted at a gaming-affine customer group. The focus was on statements suggesting an increased ability to concentrate. Especially in an environment where performance and responsiveness play a central role, such promises can have a significant purchase incentive effect.
Standard: Expectation of the average consumer
For the assessment under fairness law, it is crucial how an average informed, appropriately attentive consumer understands the advertising. If the impression is conveyed that a drink provides a specific cognitive performance improvement, it suggests a verifiable effectiveness promise. If there is no sufficient basis for this, it can be classified as misleading.
Misleading by inadequately substantiated claims of effectiveness
Distinction between permissible exaggeration and factual assertion
Permissible are promotional exaggerations as long as they are recognizable as mere value judgments. However, as soon as the impression of an objectively verifiable effect arises – such as an improvement in concentration – the threshold to factual assertion is exceeded. Then, it does not depend on the promotional form, but on the core of the statement.
Evidence requirements for health- or performance-related statements
According to the mentioned source, the court judged the used statements as inadmissible because the promised effect was not sufficiently substantiated, potentially leading to a misconception among consumers. Advertising claims that suggest a functional effect on the human organism are particularly scrutinized. In such scenarios, it is not enough for the statement to be merely suggestively designed; what matters is whether it triggers an expectation of a specific effect.
Consequences: Cessation of advertising with concentration promises
Prohibition of the challenged advertising design
According to the report, the court prohibited the manufacturer from advertising in the challenged form. The decision is based on the idea that consumers must be protected from misleading performance claims in connection with consumer goods – even when they are widespread in a trend- or scene-typical environment.
Significance for marketing, product communication, and compliance
The case illustrates that marketing measures in the area of beverages and dietary supplements must not only be creative but also legally sound. This particularly concerns claims advertising attention, focus, or concentration, and whether such messages can be understood as verifiable claims of effectiveness.
Assessment from the perspective of MTR Legal Attorneys
MTR Legal Attorneys accompanies companies, investors, and wealthy private individuals as an internationally active full-service commercial law firm in trade-related issues and at interfaces with IP law, especially in advertising communication and the protection of trademarks and content. Those working with performance-related statements within the framework of branding, campaigns, or product claims and seeking legal assessment will find further information atLegal advice in IP law at MTR Legal.
