Diet advertising with "fat-burning hormones" – contrary to competition law?

In the present legal dispute, a food manufacturer advertised its diet product as activating "fat-burning hormones". The Higher Regional Court (OLG) had to decide whether this formulation led consumers to believe that weight loss would occur simply by taking the product.

An association for the prevention of unfair competition served notice on a food manufacturer because it advertised one of its products in a misleading manner on its website.

The food manufacturer claimed in its advertising that everyone has "natural hormones that wonderfully – in a natural way – burn fat". These hormones would be activated by the diet product offered. The manufacturer further stated below that one should always ensure a balanced and calorie-conscious diet and exercise sufficiently.

The association demanded an injunction subject to penalty for payment on account of consumer deception, as the food manufacturer's advertising suggested that weight loss would occur automatically upon taking the diet product.

Court decision
In its decision of 30.11.2010, Az. 4 U 88/10 the Higher Regional Court (OLG) ruled in favour of the competition association and prohibited the misleading advertising.

According to the Lebensmittelgesetz, it is prohibited to advertise foodstuffs with misleading information, whereby misleading advertising in particular exists when properties are attributed to the products that they do not possess according to scientific knowledge or that are not scientifically established. For example, weight-loss advertising that attributes a permanently sustained weight-reducing effect to a product upon consumption without requiring changes to eating habits and the nature and extent of physical activity is also misleading. The manufacturer's subsequent reference that one should generally ensure a balanced diet and sufficient exercise does not correct the misleading nature created by the advertising statement.

Conclusion

When advertising foodstuffs, dietary supplements and pharmaceutical products, special regulations apply which must absolutely be observed in order to avoid the risk of a potentially very costly cease-and-desist letter. In particular, it is not permitted to advertise effects that have not been scientifically proven. Therefore, prior legal advice is urgently required.