Baby food and the question: is it healthy for my baby?

The Federal Court of Justice (BGH) had to decide whether the designation "Praebiotik® + Probiotik®" for baby food suggests a health benefit or merely constitutes a simple specification of composition or ingredients.

A baby food manufacturer offered its dairy products under the designation "Praebiotik® + Probiotik®", which contained galactooligosaccharides as the prebiotic component and the bacterium Lactobacillus fermentum hereditum as the probiotic component. On the packaging, in addition to this designation, the further statements "With natural lactic acid cultures" and "Praebiotik® to support healthy intestinal flora" were used.

Another baby food manufacturer saw in this health-related claims that were incompatible with the European Regulation on nutrition and health claims made on foods (so-called Health Claims Regulation) and therefore sued its competitor for, among other things, cessation and damages.

The Regional Court (LG) Frankfurt a.M. initially granted the action in part. Subsequently, however, the claim was entirely dismissed by the appellate court.

Decision of the Court

The Federal Court of Justice (BGH) stated in itsjudgment of 26.02.2014 – Az. I ZR 178/12further clarified the concept of a health-related claim within the meaning of the Health Claims Regulation and saw in the designation "Praebiotik® + Probiotik®" – unlike the appellate court – a health-related claim within the meaning of the Health Claims Regulation.

According to the view of the BGH, the designation is not perceived by the average consumer merely as a simple specification of composition or ingredients, but rather serves as a speaking mark indicating the properties "probiotic" and "prebiotic", that is, the ability to stimulate natural intestinal function and immune defences. This suggested connection between a constituent of a foodstuff and the state of health of the consumer is sufficient for the establishment of a health-related claim.

Accordingly, the BGH prohibited the use of the statement "Praebiotik® + Probiotik® – With natural lactic acid cultures – Praebiotik® to support healthy intestinal flora".

This health-related claim was also not permissible under the transitional provision of the Health Claims Regulation because it was not the subject of a prior notification within the meaning of that provision. What was requested for approval was the purely descriptive statement of an ingredient ("Prebiotic fibre supports development of healthy intestinal flora"), whereas – according to the BGH – the designation "Praebiotik®" is understood by the trade as a trade mark-like sign pointing to a particular undertaking. In this there lies a fundamental substantive difference which, under the strict standard to be applied in the application of the transitional provision of the Regulation, is contrary to its approval.

Insofar as it concerned the use of the designation "Praebiotik® + Probiotik®" alone, the BGH remitted the matter to the appellate court for renewed hearing and decision. The latter will now have to clarify the question left open hitherto as to whether the designation "Praebiotik® + Probiotik®" was used prior to 01.01.2005 for the labelling of foodstuffs and thus, to that extent, an appeal to the transitional provision of the Health Claims Regulation is possible. In that case, under certain circumstances, the products with the corresponding statement could continue to be placed on the market until 19.01.2022.

Conclusion

Advertising products as being good for health is not permitted without further ado. The Health Claims Regulation places every health-related statement under a prohibition subject to authorisation, meaning that such statements are subject to a requirement for approval and may only be used for the promotion of a foodstuff if the requirements of the Regulation are met. Which advertising slogans are permitted can be found, among other things, in a list drawn up by the EU.