"Fresh pasture milk" – misleading designation?

The Food Information Regulation (LMIV) governs the requirements for the labelling of foodstuffs. Information about foodstuffs must in particular not be misleading.

A discounter distributes a whole milk that is designated as "fresh pasture milk". In addition, an image of grazing cows is visible on the bottle label. On the back, the following notice was provided, among other things: "this product is 100% pasture milk. Our pasture milk comes from cows that spend at least 120 days per year and at least 6 hours per day on pasture".

Although the milk actually comes exclusively from cows that spend at least 120 days per year and at least 6 hours per day on pasture, a competition association considered the designation to be unfair.

The competition association is of the view that the advertising is misleading because the milk comes from cows that spend only 120 days, 6 hours each, per year on pasture, and spend the rest of the time in the barn. The consumer expects, based on the designation and the image, that the milk comes from dairy cows that had been on pasture before milking.

The Regional Court (LG) Amberg upheld the claim against the discounter. The latter appealed against the first-instance judgment.

The court's decision

The appeal was successful. The Higher Regional Court (OLG) Nuremberg dismissed the claim of the competition association with judgment of 07.02.2017 – Az. 3 U 1537/16 .

The court sees no infringement of the LMIV in the product presentation and the corresponding information.

The court already doubts whether a consumer actually understands "pasture milk" to mean milk that comes only from cows that were on pasture for at least 6 hours on the day of milking or the day before. It would be more plausible that the consumer would have the expectation that the milk comes from animals that graze in the meadow, even if not year-round, but at any rate within the framework of the customary pasture season and pasture times.

In the view of the Nuremberg judges, however, there is no misleading in the first place, because any possible misconception of the consumer is in any case removed by the clarifying note on the back of the label.

Conclusion

Caution: a clarifying note on the back of the product is not always sufficient to avoid misleading consumers through the product designation! This must be carefully examined on a case-by-case basis.