Au Backe – Is the advertising slogan for fruit quark misleading?

Is the advertising slogan "So important as a daily glass of milk!" permissible for a fruit quark? Or is the advertising slogan in question misleading? The Federal Court of Justice (BGH) had to deal with this matter.

A manufacturer of dairy products distributes, amongst other things, a fruit quark bearing the designation "Monsterbacke". On the packaging, the slogan "So important as a daily glass of milk!" is used. A competitor considers this to be a violation of the Health Claims Regulation because the advertising slogan contains nutritional and health-related claims about foodstuffs. Furthermore, the slogan is, in its view, misleading.

The Regional Court (LG) Stuttgart initially dismissed the action in which the fruit quark manufacturer was called upon to cease and desist. However, the Higher Regional Court (OLG) Stuttgart, in the second instance, ordered the defendant to cease and desist and took the view that the slogan was misleading because consumers would not expect the fruit quark to have a significantly higher sugar content than milk.

Court Decision

By judgment of 12.02.2015 – Az. I ZR 36/11 (Monsterbacke II –Press Release) the Federal Court of Justice (BGH) has decided that the advertising slogan in question is not misleading and does not constitute a health-related claim prohibited under the Health Claims Regulation.

In the case of fruit quark – so the Federal Court of Justice (BGH) – it is recognisable to the consumer that it is a product which differs significantly in its composition from milk. The comparison contained in the contested slogan does not relate to the sugar content, which in a fruit quark is naturally higher than in milk already because of the fruit sugar contained therein. Equally, consumers do not perceive the slogan as a nutritional claim within the meaning of the Health Claims Regulation.

Rather, it is a permissible health-related claim within the meaning of the Health Claims Regulation. The slogan namely makes reference to the widespread view that children and young people, with regard to the health-promoting effect, should drink a glass of milk daily.

Conclusion

The Federal Court of Justice (BGH) has thus essentially restored the judgment of the first instance dismissing the action and remitted the case to the Higher Regional Court (OLG) solely for hearing and decision on any infringement of the information requirements in relation to health-related claims. The Higher Regional Court (OLG) will now have to make findings as to the extent to which the fruit quark manufacturer would have been required to provide corresponding information within the meaning of the Health Claims Regulation.