Criticism of the Federal Constitutional Court on the official “food pillory”
The Federal Constitutional Court recently dealt with the state practice of publicly warning against food suspected of violating food law regulations in a decision (ruling of July 18, 2024, file no. 1 BvR 1949/24). The starting point was a constitutional complaint from a food company against the publication of an official warning by a state authority. The decision is of fundamental importance for the tension between consumer protection, corporate personal rights, and the requirements for information publication by state authorities.
Background: Legal basis and administrative practice
The publication of information about potentially health-endangering food in Germany is primarily based on § 40 para. 1a of the Food and Feed Code (LFGB). In the case of violations, such as due to inappropriate labeling or potential health hazards, authorities are entitled to inform the public on the internet platforms of the states. This practice-oriented publication practice has often led to the designation as a “food pillory” in the media and public, as it represents a significant image-damaging intervention for affected companies.
In the present case, the Federal Constitutional Court found that the publication by the authority did not sufficiently take into account essential constitutional standards. The court’s assumption is based on the constitutionally protected freedom of occupation (Art. 12 para. 1 GG) and the general corporate personal right (Art. 2 para. 1 GG in conjunction with Art. 19 para. 3 GG). These fundamental rights require careful balancing between the protection of the public and the interests of the affected company, especially in cases of suspicion.
Requirements for official suspicion reporting
Proportionality and duty of care
The court emphasized that state interventions through warnings and product publications must always comply with the principle of proportionality. Measures with public impact should by no means be based on mere suspicion or assumptions. Instead, the authority is obliged to carefully examine the accuracy and scope of their assumptions and provide evidence for the alleged complaints. Without adequate fact-finding and evidence-gathering, there is a risk of impermissible pre-judgment and serious economic and reputational impacts for the company concerned.
Transparency of procedures and right to a hearing
Furthermore, the Federal Constitutional Court clarified that companies must not merely be “objects of administrative measures” but have a right to be heard and participate in the administrative procedure. Before a publication, a comprehensive weighing of interests must take place, and the affected company must be given the opportunity to comment. The publication may only rely on proven violations and must aim to avert a concrete, unavoidable danger to consumers.
Consequences of publication and corporate fundamental rights
Warnings issued and their publication on administrative platforms or the internet can have existential consequences for affected companies. Targeted consumer information, for example by naming product names, manufacturers, distribution channels, and other product details, often leads to immediate sales slumps and lasting reputational damage. The court emphasized that in such constellations, special requirements for the care and objectivity of the authority are necessary. The fundamental rights of companies must be fully considered, and publication limited to the necessary level of information even with serious suspicions.
Balancing consumer protection and corporate interests
Protection function in favor of consumers
Consumer protection constitutes a significant common good that entitles authorities to warn in a timely and effective manner in the case of proven or urgently feared health risks, even by naming companies and affected products. However, the effectiveness of these warnings depends on their factual correctness, appropriateness of presentation, and compliance with legal requirements.
Requirements for presentation and correction of notifications
Official announcements must not imply misconduct by the affected companies that goes beyond the actual facts or gives the impression of criminal relevance if only suspicion of a violation exists. The Federal Constitutional Court emphasizes the ongoing presumption of innocence in this regard and the right to a counterstatement or correction if the allegation is later cleared up (Note: State of decision and procedure, status August 2024, source: https://urteile.news/BVerfG_1-BvR-194924_Bundesverfassungsgericht-kritisiert-Lebensmittelpranger~N35314).
Implications for administrative practice and companies
The decision of Germany’s highest court makes it clear that authorities must adhere to heightened scrutiny obligations when dealing with suspected cases and may not resort to publication based on the principle of prevention in the face of impending serious fundamental rights infringements. For companies, this results in increased vigilance in response to official information publications and the associated reputational risks.
Concluding thoughts
The judgment of the Federal Constitutional Court marks a significant milestone for the legal limiting of official information publications in the area of food law. In particular, companies exposed to public suspicion reporting (“pillory effect”) can draw important conclusions from the court’s guidelines for possible approaches in proceedings against official warnings. The decision raises fundamental questions in the area of governmental communication, compliance, and IT processes for all companies, media, and platform operators.
Those who see a need for legal advice on information law questions, as well as data and communication obligations of state bodies, can find further information and support at MTR Legal in the area of IT law legal advice.
