Beer can be "vitalising"

The Regional Court (LG) Arnsberg recently had to address the question of whether the advertising term "vitalising" for a beer constitutes a health-related claim that is impermissible under the Health Claims Regulation (HCVO). The question was answered in the negative, not least due to the Klitschko brothers (judgment of 19.12.2013, Az. 8 O 99/13).

The manufacturer had advertised its alcohol-free beer with the adjectives "isotonic", "refreshing" and "vitalising". The latter claim prompted an association combating unfair competition to take action, as it identified herein an impermissible health-related claim and accordingly sought a cease-and-desist order against the manufacturer.

The defendant defended itself against this by arguing that the term "vitalising" merely referred to product advantages such as sensory qualities and taste, and did not suggest an improvement in health. Furthermore, it was a play on words with the forename of the testimonial Vitali Klitschko.

The court's decision

The court took the position that the scope of application of the HCVO was not even opened, because it does not cover claims that relate only to general well-being without any health nexus. "Vitalising" is a synonym for "activating, stimulating, invigorating, enlivening, refreshing, exhilarating, stimulating" and is therefore not related to physical health.

In assessing the meaning and scope, the court was of the opinion that the advertised product must also be taken into account by its nature. In the context of (alcohol-free) beer, it is hardly conceivable that the claim would be understood to mean that consumption is accompanied by an improvement in health status.

Furthermore, the court follows the manufacturer's argument and also considers a sufficiently clear reference of the claim to the name of the testimonial to be sufficient in order to preclude any potential misunderstanding.

Conclusion

The distinction between claims with health nexus and claims relating to general well-being remains unclear. Users of corresponding advertising statements can therefore hardly avoid seeking legal advice in order to avoid an unpleasant surprise with well-intentioned advertising promises.