Does abdominal fat melt like butter in the sun?

Advertising with health-related claims is vulnerable because the legislature has established particularly strict rules here to protect consumers. According to these, advertising a preparation's effects is only permitted if such effects have already been scientifically proven reliably before the publication of the corresponding advertising statements. This applies all the more when advertising a particularly effective weight-loss product and promising that such results will occur from the intake alone.

If one believes the advertising statements of a provider of a weight-loss product, a dream comes true – a highly effective preparation has come to light and requires no restrictions or changes to one's lifestyle:

• "Fat melts like butter in the sun!"
• "Fat is literally burned out of the fat cell"
• "With … you can extract the fat yourself from even the largest fat cell"
• "The effect is tremendous. You lose weight evenly all over your body"
• "… specifically targets abdominal fat"
• etc.

The list could be extended indefinitely, as the dispute concerns more than 30 statements, all of which advertise a miracle cure. It is therefore hardly surprising that the provider was sued for cessation.

The court decision

The Regional Court (LG) Kassel condemned the provider of the weight-loss product by judgment of 18.09.2014 (Az. 11 O 4205/13) in full to cease and desist from the disputed advertising statements. These constitute health-related claims, i.e. claims by which it is stated, suggested or even only indirectly expressed that a relationship exists between a foodstuff on the one hand and health on the other. The promised weight reduction or fat burning falls within the scope of health.

Health-related claims are prohibited under the Health Claims Regulation unless it has been proven on the basis of generally recognised scientific knowledge that the presence, absence or reduced content of the nutrient or other substance to which the claim refers in a foodstuff or category of foodstuffs has a positive nutritional or physiological effect. Furthermore, the amount of the product whose consumption can reasonably be expected or is recommended by the manufacturer must contain a significant amount of the active substances which, according to generally recognised scientific knowledge, are suitable to achieve the claimed physiological effect. Nutritional and health-related claims must be based on generally accepted scientific knowledge and be supported by it.

According to the court's view, these conditions are not met for the advertised weight-loss product. This was not advertised as having a supporting effect, but as a veritable fat destroyer. Moreover, this effect was to occur from the mere intake of the product alone and was furthermore to concentrate on certain fatty deposits. Corresponding effectiveness proofs had not been claimed even by the defendant and did not emerge from the documents submitted. The advertising statements were therefore to be regarded as insufficiently substantiated. The expert opinion offered by the advertiser as evidence of the product's effectiveness could not be obtained. According to the clear wording of the relevant provisions, the proof must already exist at the time the claims are made. The advertiser can therefore only rely on already existing and known findings for the purposes of evidence and not on an expert opinion obtained only during the proceedings.

Conclusion

The judgment is unavoidable in light of the advertising statements. If the miracle cure advertised were to exist, this would presumably have become common knowledge by now. Until then, consumers must rightfully be protected against health-related claims and efficacy promises of this kind, since they are generally unable to assess these themselves.