Unfair use of health claims in advertising

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Advertisements that feature health claims can fall foul of competition law if the claims have not been reviewed and cleared by the European Food Safety Authority (EFSA).

One of the functions of competition law is to protect consumers from misleading advertising, and this also applies to health-related information on foodstuffs. According to the EU’s Health Claims Regulation, information of this kind is only permitted if it has been scrutinized and approved by the EFSA. Otherwise, this constitutes unfair advertising, explains commercial law firm MTR Legal Rechtsanwälte.

The fact that advertisements featuring health claims may be unlawful is something that one energy drinks manufacturer had to learn the hard way. The relevant advertising promoting an energy drink was specifically targeted at gamers. The company’s website included statements suggesting that the drink gives you the “power, performance, and concentration” you need and that it promotes concentration. These and other claims were perceived by the Federation of German Consumer Organisations (vzbv) as unfair advertising due to the lack of supporting scientific evidence.

The subsequent lawsuit filed by the vzbv was granted by Hamburg’s regional court – the Landgericht (LG) Hamburg – on January 19, 2023 (case ref.: 312 O 256/21). The court found that the advertising in question was in breach of the EU’s Health Claims Regulation, as the promotional statements at issue amounted to health claims. Despite identifying a direct link between consuming the drink and improved concentration and responsiveness, the manufacturer was unable to point to scientific evidence to support these claims, and this meant that they were in violation of the Health Claims Regulation.

Citing the Regulation, the court went on to clarify that health claims are only lawful if they have been verified and given the green light by the EFSA. This was not the case here. Moreover, the claims must only refer to the active ingredient that has been approved. In this case, the advertising did not refer specifically to the caffeine in the energy drink but to the product as a whole. For this reason, the LG Hamburg imposed a ban on the advertising promoting the product with the health claims.

The team at MTR Legal Rechtsanwälte includes experts in antitrust and competition law.

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