"Energy & Vodka" is a permissible product designation

What should one make of a drink called "Energy & Vodka"? Does one assume that the drink possesses positive nutritional properties and has a stimulating, invigorating effect on one's organism? Does the designation violate the Health Claims Regulation? The Federal Court of Justice (BGH) addressed this issue in its judgment delivered on 09.10.2014.

The proceedings were conducted by the Association for the Protection of the Spirits Industry (Schutzverband der Spirituosen-Industrie e.V.). This association views the designation "ENERGY & VODKA" for a drink with an alcohol content of 10% Vol. as a violation of the Health Claims Regulation.

Withjudgment of 10.07.2012 (Az. I-4 U 38/12) the Higher Regional Court (OLG) Hamm decided (see our contribution), that the designation of an alcoholic mixed drink as "Energy & Vodka" must be discontinued, because according to the Health Claims Regulation drinks with an alcohol content of more than 1.2% by volume may not carry nutritional claims. According to the explanations of the court of appeal, a nutritional claim means any statement by which it is declared, suggested or even indirectly expressed that a foodstuff possesses special positive nutritional properties. "Energy" is such a nutritional claim because it suggests to the consumer that the consumption of the drink has a positive effect on their organism. This is misleading and therefore contrary to competition law.

The court's decision

With judgment of 09.10.2014, the Federal Court of Justice (BGH) decided (Az. I ZR 167/12) that the designation "ENERGY & VODKA" is not a statement prohibited under the Health Claims Regulation. The appeal judgment of the OLG Hamm was therefore overturned.

In the opinion of the court, the designation does not express, either directly or indirectly, that the drink possesses special (positive) properties. Rather, it merely points to a property that all foodstuffs of the corresponding category possess, namely the energising effect. The special purpose that the Health Claims Regulation is intended to prevent is therefore absent. From the presentation of the product, it is clear to the consumer beyond doubt that it is a mixed drink consisting of an energy drink (73.3%) and vodka (26.7%).

Nor are the provisions governing the labelling of spirits violated. Although vodka must have a minimum alcohol content of 37.5% according to these provisions, this does not preclude a reference to vodka as a component of a mixed drink, as otherwise the latter could no longer be accurately described and marketed.

Conclusion

Health claims are a difficult matter, with which even the appellate courts struggle. This makes designation and labelling difficult and unpredictable for food manufacturers. For this very reason, legal support and advice is so important when introducing new products in order to address any problems as early as possible and to find solutions for them.