Beer is not palatable!

May a brewery describe its beers as "palatable" or does this advertising claim contain a health-related claim which deceives the public about a positive health-related aspect of the alcoholic beverage? This legal question had to be decided by the Regional Court (LG) Ravensburg.

An association for the promotion of commercial interests was in dispute with an Upper Swabian brewery regarding the permissibility of the advertising claim used by the business owner that his beers were "palatable". The association considered this advertising claim to be anti-competitive because "palatable" suggests a health-related reference, which is statutorily prohibited as a health-related claim for alcoholic beverages with an alcohol content of over 1.2 vol.%.

In the course of proceedings for provisional injunctive relief, the association's legal position was confirmed and a preliminary injunction was issued, which obligated the brewery to cease advertising its beers as "palatable".

The brewery objected to this decision.

Court decision

The Regional Court (LG) Ravensburg stated in a press release dated 25.08.2015 that beers may not be advertised with the term "palatable", and accordingly such advertising claims are to be discontinued.

The decision was based on the grounds that the advertising claim violated an EU regulation prohibiting health-related claims for beer with an alcohol content of over 1.2 vol.%. In this regard, the criterion of a health-related reference is already met if a connection between the foodstuff and health is suggested or even only indirectly expressed.

The word "palatable" conveys in its principal meaning the compatibility for the body and its functions, and thus objectively – regardless of any further explanations – indicates a health-related reference.

Conclusion

Violations of applicable laws generally constitute an infringement of competition law which must be discontinued. Unfortunately, the distinction between claims with a health-related reference and claims regarding general well-being is fluid, so that in order to avoid disputes relating to competition law, one can hardly avoid obtaining legal advice in order not to experience any unpleasant surprises with the well-intentioned advertising promise.