Beer must not be wholesome

A brewery may not advertise its alcoholic beer varieties using the term "wholesome". The Higher Regional Court (OLG) Stuttgart also regarded the advertising statement as a health-related claim and confirmed the decision of the Regional Court (LG) Ravensburg.

The brewery based in the Allgäu region advertised three of its beer varieties with an alcohol content of 2.9% to 5.1% using the term "wholesome". An association for the promotion of commercial interests saw in this a health-related claim, which is prohibited for beverages with an alcohol content of more than 1.2%. The first-instance court also took this view (see here).

The brewery, however, did not regard the term "wholesome" as a health-related claim, but rather as a representation of the desirability, in particular the taste aspects, of the advertised beer varieties. Consequently, the brewery appealed against the decision of the first-instance court.

Court Decision – Beer is not wholesome

By judgment of 03.11.2016 (2 U 37/16), the Higher Regional Court (OLG) Stuttgart (press release of 03.11.2016) confirmed the decision of the Regional Court (LG) Ravensburg and ordered the brewery to cease the corresponding advertising.

With reference to the case law of the Court of Justice of the European Union (EuGH), the court proceeded on the basis that statements relating to alcoholic beverages must be free from any ambiguity. A health-related link must be affirmed even if a statement implies that negative or harmful effects on health which are normally associated with consumption are absent or less severe in the advertised product.

According to standard dictionaries, "bekömmlich" is equivalent to "beneficial", "easily digestible" or "healthy". The term "beneficial" does not merely include general well-being, but is to be understood in the sense of a "long-term promise" that the advertised food product will not be harmful even with prolonged consumption. The fact that some consumers might associate the brewery with the advertising slogan "Wohl bekomm's" does not restrict the meaning of the statement. "Wohl bekomm's" is – in the sense of a drinking toast – a wish, whereas "bekömmlich" is a promise.

Conclusion

Advertising for alcoholic beverages may not contain health-related claims. Whether a statement is health-related depends on its general understanding. In the case of the term "bekömmlich", the courts have hitherto been unanimous on the health-related nature of the claim. The Higher Regional Court (OLG) Stuttgart has admitted the case for revision to the Federal Court of Justice (BGH), so it remains to be seen whether the BGH will also take this view.