Beer not "vitali-zing" after all

"Vitalizing" – with this wordplay, boxer Vitali Klitschko had advertised an alcohol-free beer. Now the Higher Regional Court (OLG) Hamm has decided that this advertising claim by the brewery was not permissible in this form.

In 2013, Warsteiner brewery had advertised its alcohol-free beer on the back labels and packaging of so-called sixpacks with the claims "vitalizing", "refreshing" and "isotonic", and on the bottle labels depicted the boxer brothers Vitali and Wladimir Klitschko.

A consumer protection association considered the advertising with the term "vitalizing" to be impermissible and sued for an injunction because it was health-related and the brewery had not attached any specific health-related claim to it.

Court decision

Modifying the first-instance judgment of the LG Arnsberg (of which we had reported),OLG Hamm by judgment of 20.05.2014 – Az. 4 U 19/14 decided that the private brewery was not permitted to advertise its alcohol-free beer with the claim "vitalizing" because no specific health-related claim had been attached to this advertising statement.

The term "vitalizing" is a so-called non-specific health-related claim within the meaning of the European Health Claims Regulation (which is particularly to be observed in the context of advertising statements for foodstuffs containing health-related claims).

The reference to health already follows from the literal meaning of the word. "Vitalize" stands for "invigorate" and "stimulate". Since the adjective "vitalizing" conveys to the consumer an improvement in health status, the brewery thereby suggests that consumption of its alcohol-free beer would actually bring about an improvement in health status.

The claim "vitalizing" is furthermore non-specific within the meaning of the Health Claims Regulation because it does not relate to a specific bodily function to be promoted.

However, such health-related claims are only permissible if they are accompanied by an approved health-related claim.

Since this was not the case, the advertising violated the Health Claims Regulation and was – in the court's view – impermissible to that extent.

This, according to the court, was not prevented by the fact that the expression "vitalizing" could also be understood in connection with the advertising medium Vitali Klitschko.

Conclusion

Whether the brewery accepts the judgement or appeals to the Federal Court of Justice (BGH) remains to be seen.

Nevertheless, the judgement once again demonstrates that the Health Claims Regulation can set limits even to a good advertising idea – at least when the advertising expresses that the advertised product is good for health, but at the same time fails to meet the requirements of the Regulation.