Health-related advertising for Bach Flowers?

In the present dispute, the Higher Regional Court (OLG) Hamm ruled on the legal question of whether mental equilibrium is also covered by the health concept of the Health Claims Regulation and thus is to be distinguished from general well-being, with the result that advertising claiming a positive effect on mental well-being must be supported by reliable scientific studies.

The operator of a pharmacy as well as a mail-order pharmacy advertised Bach Flower products in the context of an advertising circular under the slogan: "Winter can come!" In doing so, he advertised the foodstuffs with claims regarding effects on mental equilibrium and health-related well-being as follows:

"Calm and strong throughout the day"

"Original RESCUE® is today used by consumers in over 45 countries in emotionally challenging situations such as e.g. a flight, an exam, a dental appointment or challenges in everyday life."

"...is gladly used in emotionally challenging situations, e.g. at work."

"...can help us cope with emotional challenges – individually usable or for a personal blend. Alcohol content 27% vol."

A competition association based in Berlin therefore issued a cease-and-desist letter to the pharmacy operator and demanded cessation of health-related advertising. Bach Flower products should be classified as foodstuffs for which no health-related advertising may be made if it does not correspond to what scientific findings support or which is at least not sufficiently scientifically substantiated.

Court Decision

The Higher Regional Court (OLG) Hamm decided withjudgment of 07.10.2014, Az. 4 U 138/13, that the advertising statements objected to by the competition association are in breach of the Health Claims Regulation and are thusunfair competition.

Bach Flower products may, like all other foodstuffs, only be advertised with advertising statements relating to general well-being. The pharmacist advertised his products claiming a positive effect in situations of anxiety. However, flight anxiety, exam anxiety and other emotional challenges are states outside of mental equilibrium and therefore constitute impairments to health.

According to the European Health Claims Regulation, non-specific health-related claims are only permissible if they are based on generally recognised scientific evidence. Since this was not the case with the present Bach Flowers advertising, the advertising statements were to be prohibited as inadmissible.

Conclusion

The distribution and marketing offoodstuffsare subject to strict legal regulations based on European law in order to protect human health. It is therefore advisable to have corresponding advertising statements legally reviewed, as corresponding violations can be penalised under competition law.