Misleading health claims on food products are prohibited
The Higher Regional Court of Frankfurt decided by default judgment on November 14, 2024, that advertising with the statement “Anti-hangover” constitutes a violation of the European Food Information Regulation and prohibits the defendant company from advertising food with the statement “Anti-hangover” (Case No. 6 Ukl 1/24).
Objective and scope of the FIR
The Food Information Regulation (FIR) came into effect on December 13, 2014, replacing the previous EU labeling regulations. It obligates manufacturers and food business operators to clearly and visibly provide certain mandatory information such as the name of the food, the list of ingredients, the net quantity, and the best-before date directly on the packaging or on a label attached to this packaging. The FIR requires that this information be clear, understandable, and not misleading to the consumer in order to ensure clear identification and differentiation of the products.
Prohibition of misleading information under Article 7 of the FIR
According to Article 7 of the Food Information Regulation, information on foods must not be misleading. Thus, no claims of prevention, treatment, or cure of a human disease can be attributed to the food, nor should it give the impression that the food possesses such properties. This prohibition also extends to advertising. Exceptions to this rule exist only for natural mineral waters or foods intended for specific dietary uses, according to the business law firm MTR Legal Attorneys, which also advises in food law.
Violation of FIR food labeling and advertising rules
The case before the OLG Frankfurt involved a product sold on an online platform that was explicitly advertised with the term “Anti-hangover”. A qualified economic association filed a lawsuit against this, alleging a violation of the European food labeling and advertising rules and filed an injunction under the Act Against Unfair Practices against the person responsible for the offer. Since the defendant did not appear at the hearing without excuse, the court issued a default judgment prohibiting the criticized advertising.
Facts and procedural history
In its reasoning, the OLG Frankfurt initially clarified that the contested mineral tablets are considered foods within the meaning of the EU Food Information Regulation (FIR), as they are intended or can reasonably be expected to be consumed by humans. Therefore, their advertising is subject to the strict FIR requirements for fair information practices.
Classification as food within the meaning of the FIR
The FIR applies to food business operators at all stages of the food chain who provide food information. The obligations of the food business operator include, in particular, correct allergen labeling and the provision of all legally required information. Member states, such as Germany, can supplement the FIR with national regulations, such as the Food Information Implementation Regulation (LMIDV). For specific products, like fresh meat, there are additional origin labeling requirements. The FIR promotes the free circulation of food within the EU and serves to protect consumer health.
FIR obligations in labeling and advertising
The labeling of foods is a central issue in consumer protection and plays a critical role in market transparency. Regulation (EU) No 1169/2011, better known as the Food Information Regulation (FIR), establishes uniform requirements for food labeling across Europe. The aim is to provide consumers with clear, understandable, and reliable information so they can make informed decisions about their diet and product purchases.
Nutritional labeling under EU law
A key component of the FIR is nutritional labeling. It requires companies to provide information on the packaging about the main nutrients. These include the amounts of fat, saturated fatty acids, carbohydrates, sugars, protein, and salt. These nutritional details help consumers better assess the quality and composition of food and manage their diet accordingly—for example, when they want to ensure a balanced intake of saturated fatty acids.
Allergen labeling and consumer protection
Another central element is allergen labeling. Especially for people with allergies or intolerances, it’s essential to instantly recognize whether a product contains certain allergens such as gluten, milk, eggs, fish, peanuts, or celery. The FIR mandates that these allergens be clearly highlighted in the ingredients list. This minimizes the risk of adverse reactions from unintentional consumption and enhances consumer safety.
For companies, complying with labeling obligations is also of great importance. They are required to provide all relevant information correctly and completely to meet statutory requirements and gain consumer trust. Incorrect or incomplete information can not only lead to warnings and fines but also permanently damage the brand’s image.
National supplements through the LMIDV
In Germany, there are additional regulations alongside the FIR, which are specified in the Food Information Implementation Regulation (LMIDV). These concern, among other aspects, the labeling of meat and meat products, the indication of the country of origin, and the use of additives. This ensures that consumers are also comprehensively informed about the origin and processing of foods.
The requirements for food labeling are regularly reviewed and developed by the European Commission and national authorities. The aim is to strengthen consumer protection, increase transparency, and harmonize the internal market. Companies must therefore stay up-to-date and adapt their products to current regulations.
With regards to alcoholic beverages, which are often discussed in the context of complaints like a hangover, the FIR also mandates certain obligatory details, including the alcohol content and possible warning notices. Consumers should read this information carefully and handle alcohol responsibly. Home remedies for a hangover can provide temporary relief but do not replace the need to adhere to recommended quantities and pay attention to your health.
Overall, it is clear that food labeling is a complex yet indispensable tool for consumer protection and food safety. It enables consumers to consciously shape their diet and lifestyle while giving companies the opportunity to market their products transparently and lawfully. Adhering to labeling requirements is therefore not just a legal obligation but also an important contribution to strengthening trust in food and brands.
Health claims in food advertising are prohibited
Under Article 7(3) of the FIR, it is prohibited to attribute to food properties of preventing, treating, or curing a human disease, or to imply such properties.
“Hangover” as a disease-like condition
The court interpreted this provision strictly in the present case: It determined that the symptoms associated with excessive alcohol consumption—the so-called “hangover”—are to be understood as a disease or a disease-like condition within the meaning of the FIR. Typical hangover symptoms include headaches, a throbbing head, dizziness, nausea, stomach discomfort, a dull feeling in the head, and disturbed balance. These symptoms arise from alcohol’s impact on the body, especially dehydration and mineral loss, which disrupt the chemical balance between water and minerals. Drinking beer or other alcoholic beverages can lead to these symptoms.
Many people turn to various remedies and home remedies to alleviate the symptoms after such a mistake in handling alcohol—these include water, exercise in fresh air, medications such as painkillers, drops of essential oils, or other aids to support the body.
Prohibited Health Claims in Advertising
Against this background, advertising with the addition of “Anti-Hangover” is misleading because it suggests that the advertised food could achieve a health effect that it is not permitted to have according to regulations. Statements or indications that a food is suitable to prevent or alleviate symptoms like those of a hangover therefore exceed the permissible limits for food advertising, according to the Higher Regional Court (OLG).
“Anti-Hangover” not a permissible Health Claim
Limits of permissible Health Claims under EU Law
The decision shows that health-related advertising in the food sector is a delicate balance. According to the Higher Regional Court of Frankfurt, even the mere wording “Anti-Hangover” is sufficient to imply a health-related promise that is not permissible under European law. This makes it clear that advertising for food – even if it is only so-called supplements or mineral preparations – must not create the impression of having health-promoting or disease-preventive effects, unless these are expressly covered by approved health claims. Formulations outside the approved claims should therefore be urgently avoided.
Duties of Manufacturers and Retailers
The Food Information Regulation (LMIV) obliges manufacturers and suppliers to comply with all innovations and legal requirements. This obligation includes, in particular, the correct labeling on the package, the indication of ingredients, nutrients, and allergens, as well as providing these mandatory details at the time of order, especially in distance selling. The LMIV was developed by the Parliament, the Council, and the Commission at the European level and is monitored at the national level. The examination and enforcement of compliance are carried out by the competent authorities, with the use of digital systems like cash register systems and the website playing a central role in providing transparent information. The manufacturer is responsible for the accuracy of the information, while the company location is crucial for legal allocation. Providing all relevant information on the label serves the purpose of assisting consumers in their decision-making and protecting their interests. Compliance with the requirements, such as for the letters B and I in allergen labeling, is mandatory to ensure uniform standards and consumer protection.
OLG Frankfurt Tightens Requirements on Food Advertising
The Higher Regional Court of Frankfurt has clearly stated its legal opinion with this decision, providing an important hint for practice. Considering the broad interpretation of the concept of disease and the narrow limits for communicating health-related effects, it is foreseeable that similar advertising claims will be scrutinized even more critically in the future.
Furthermore, the Higher Regional Court of Frankfurt has further specified the requirements for the fairness and transparency of food advertising and clarified that creative marketing formulations must not be individualized beyond the legal limits. This decision thus sets another significant mark in the tension between innovative advertising and consumer protection in food law.
MTR Legal Attorneys advise comprehensively in the food law.
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