Coronavirus advertising with protection through "vital mushrooms" misleading!

Are "vital mushrooms" a medicinal product and do they help with coronavirus disease? The Regional Court (LG) Gießen has taken a position on misleading coronavirus advertising by an online retailer.

A competition association took action against an online retailer. The retailer's website described the healing properties of so-called "vital mushrooms". The entrepreneur offered, in addition to partly paid and partly free seminars, books on the subject of vital mushrooms for sale.

In the course of the coronavirus pandemic, the retailer placed a COVID-19-related advertisement on his website. Below the headline "CORONAVIRUS INFECTION: How we can protect ourselves with vital mushrooms!" there was an embedded video file. Furthermore, seminars on the topic of "coronavirus" were also offered.

Subsequently, a competition association warned the online retailer for breach of the Heilmittelwerbegesetz (HWG) in relation to the coronavirus advertising. However, the retailer refused to submit the required declaration of undertaking subject to a penalty for discontinuance. Finally, the competition association brought an action for injunction.

Vital mushrooms are medicinal products

The LG Gießen (Beschl. v. 06.04.2020, Az. 8 O 16/20) classified the online retailer's coronavirus advertising as misleading and therefore in breach of competition law. First, the judges established that the relevant provisions of the HWG constitute market conduct rules within the meaning of competition law. Accordingly, breaches of the HWG are subject to competition law sanctions.

The court established such a breach of the HWG. A prerequisite for misleading advertising within the meaning of the HWG is first that the vital mushrooms are to be classified as a medicinal product within the meaning of the HWG. A medicinal product is in particular also present when the product in question is intended for application in the human body merely for the cure, alleviation or prevention of diseases or morbid conditions ("presentation medicinal product").

A considerable number of consumers would assume that the "vital mushrooms" are intended for therapeutic purposes, and that it is therefore a medicinal product, according to the court.

Coronavirus advertising is misleading

The LG Gießen further classified the retailer's coronavirus advertising as misleading. According to the HWG, misleading advertising is in particular present when medicinal products are ascribed therapeutic efficacy or effects which they do not have. Such a statement as in the disputed coronavirus advertising would be permissible exclusively if it were based on established scientific knowledge, according to the judges.

However, it is common knowledge that with respect to the disease caused by the pathogen COVID-19, there is currently no established scientific knowledge as to whether certain substances provide protection in the event of infection or not. At this state of science, any marketing of a product that expresses protection against COVID-19 is prohibited by the HWG.

Conclusion

In general, great caution should be exercised in advertising medicinal products. This applies, as the judgment shows, in particular to all substances which are credited with a positive effect with regard to a COVID-19 disease.