Alete infant pudding for strong bones?

The statements on the infant pudding 'Alete Milch Minis' by Nestlé, 'Zinc for strong bones & healthy growth' and 'Calcium for strong bones' contain unlawful health claims. The Regional Court (LG) Frankfurt a.M. has prohibited such advertising statements by Nestlé Nutrition GmbH.

Nestlé offered the infant pudding 'Alete Milch Minis' and recommended it for infants from 8 months and for toddlers. The product packaging contained the statement that one cup contained 23% of the daily requirement of calcium and zinc as well as the following statements:

Zinc for strong bones & healthy growth
Zinc promotes healthy growth
Calcium for strong bones
Calcium ... important for strong bones

However, there was no approval from the European Food Safety Authority for these statements. Furthermore, the product packaging lacked a reference to the importance of a varied and balanced diet and a healthy lifestyle. The warning letter from the VZBV was unsuccessful.

Court prohibits advertising on Alete pudding

By its judgment of 10.02.2016 – 2-06 O 337/15 the Regional Court (LG) Frankfurt a.M. confirmed the position of the VZBV and ordered Nestlé to cease the aforementioned advertising statements for the product 'Alete Milch Minis'.

In the court's view as well, packaging inscriptions constitute health-related claims. The relevant public understood the statements concerning the ingredient zinc to mean that the product supports healthy growth and bone formation through the zinc ingredient. The statements concerning the ingredient calcium were understood by the relevant public to mean that there is a connection between the ingredient calcium and health insofar as the bone formation and bone maintenance of the infant or toddler would in any case be supported.

Owing to the absence of these statements from the list of authorised claims for infant and toddler nutrition in question, the court confirmed a breach of the Health Claims Regulation (HCV) of the European Union, according to which undertakings may only advertise with health-related statements that are authorised by the European Food Safety Authority.

Furthermore, the present health-related claims were unlawful because the presentation did not include a reference to the importance of a varied and balanced diet and a healthy lifestyle. The court did not follow Nestlé's view that the product was a complementary food.

Conclusion

The HCV, which serves consumer protection, has the function of ensuring that every voluntary statement on a foodstuff within the countries of the EU is clear, precise and substantiated. If there is no authorisation from the European Food Safety Authority for health-related claims, this constitutes not only a breach of the HCV, but also a breach of competition law. In addition to consumer protection organisations, competitors may also assert rights to injunctive relief.