§ 40 LFGB: BVerfG stops publication – constitutional protection for food business operators strengthened

The food law warning system – consumer transparency versus company pillory

The food law warning system in Germany is based substantially on § 40 LFGB (Food and Feed Code). According to paragraph 1a of this provision, the authorities are obliged to inform consumers of certain breaches of food law regulations, if:

• there has been a substantial breach of hygiene requirements,
• deception has occurred, or
• the deviation from the provisions is likely to materially affect consumer interests.

This provision pursues a lofty objective: consumer protection through transparency. Citizens should be informed directly before acquiring products or services if a company has breached central food law requirements. Yet this is precisely where the conflict lies: publication on the internet acts like a state pillory. Unlike fines or prohibition orders, the information has immediate broad-based effect, is findable via search engines for a long time, and can ruin the company's image even after the deficiencies have long been remedied. For affected businesses – from small catering operations to caterers to large food corporations – this constitutes an existence-threatening interference with freedom of profession (Art. 12 GG)

The case: catering company against threatened publication

The proceedings concerned a company from the catering and event industry.

• On 14. Februar 2023 the regulatory office of the city (…) conducted an inspection. In doing so, breaches of food law regulations were identified.
• The authority announced that it would make the findings publicly known. Legal basis: § 40 Abs. 1a Satz 1 Nr. 3 LFGB.
• The company applied to the Administrative Court Frankfurt a.M. for interim legal protection against publication. Result: rejection (order of 27 April 2023, 5 L 1045/23.F).
• The appeal before the Hessian Administrative Court of Appeal was also unsuccessful (order of 19 July 2024, 8 B 676/23).
• Finally, the company went to Karlsruhe: constitutional complaint with a request for an interim order.

The decision of the BVerfG: publication stopped for now

The Federal Constitutional Court (order of 28 July 2025 – 1 BvR 1949/24, published on 19.08.2025) has provisionally halted publication. The city may not publish information about the breaches until a decision on the merits, at most for six months.

Standard of review (§ 32 BVerfGG)

The court did not substantively review whether publication was lawful, but rather whether an interim order was warranted. Decisive was a balancing of consequences:

• What disadvantages threaten if the order is not issued and the constitutional complaint is later successful?
• What disadvantages arise if the order is issued but the constitutional complaint is unsuccessful?

Deliberations of the court

1. Admissibility

• • The complaint is neither inadmissible nor manifestly unfounded.
  • The principle of subsidiarity was observed: all court-of-law remedies were exhausted.

2. Risk of irreversible harm

• • A publication leads to irretrievable loss of reputation.
  • Loss of image and sales can reach up to destruction of existence.
  • Even a notice from the authority that deficiencies have since been remedied cannot prevent the damage – consumers usually do not perceive the entries in a differentiated manner.

3. Weighing of consumer interests

• • The information interest of consumers is legitimate.
  • However, one and a half years after the inspection date, the information has low topicality and relevance for health protection.
  • Further waiting therefore weighs less heavily than the irreparable harm to the enterprise.

Result

The disadvantages on the part of the enterprise outweigh. Therefore, the BVerfG prohibits publication until the decision in the main proceedings.

Classification: § 40 LFGB remains constitutionally disputed

The order is part of a long series of constitutional disputes concerning § 40 LFGB. The Federal Constitutional Court (BVerfG) has repeatedly emphasised that publications under this provision can deeply interfere with freedom of profession and are only permissible under strict observance of proportionality. The decision makes clear that authorities must exercise special care in handling § 40 LFGB:

• Topicality of the information is decisive: old breaches lose their warning value.
• Transparency in presentation is required: consumers must clearly recognise whether deficiencies have been remedied.
• Weighing against fundamental rights is mandatory: the stigmatising effect must not be overlooked.

Recommendation for enterprises in food law

Enterprises facing a threatened publication under § 40 LFGB should:
1. Obtain specialised legal protection immediately

• • Interim legal relief at the administrative court is mandatory, even if the prospects of success often appear low.
  • In parallel, the possibility of a constitutional complaint should be examined. This, however, presupposes prior unsuccessful pursuit of the court-of-law remedy!

2. Develop proactive compliance strategies

• • Documentation of hygiene inspections, internal reviews and employee training are essential.
  • Transparent communication with authorities can help to influence publication plans at an early stage.

3. Risk management for reputation protection

• • The mere threat of publication should be strategically prepared in corporate communications.
  • Legal and PR advice should go hand in hand to minimise damage.

Conclusion: Karlsruhe strengthens fundamental rights protection – enterprises should be prepared

The order of the Federal Constitutional Court (BVerfG) makes clear: publications under § 40 LFGB are not automatic for authorities. Where consumer protection loses topicality, the fundamental rights of enterprises gain in weight. For enterprises in food law, this is an important confirmation: they are not defenceless against the warning system under § 40 LFGB. Consistent legal defence by the specialists at AVANTCORE Rechtsanwälte in Stuttgart can at least delay or even prevent publications.