Base price for dietary supplements in capsule form

Must the base price be indicated for dietary supplements distributed in capsule form? This question, which is important for many retailers, is currently disputed in case law. The Regional Court (LG) Düsseldorf has now taken up this matter.

An online retailer sold dietary supplements to end consumers via its online shop. Several products were offered only with an indication of a total price. These included, among other things, several dietary supplements offered in capsule form.

A competition association unsuccessfully warned the retailer about missing base price information and demanded the submission of a binding declaration of discontinuance under penalty. Thereupon, the competition association took legal action against the entrepreneur and demanded, inter alia, discontinuance on account of the alleged violation of competition law.

Base price for dietary supplements must be indicated

The LG Düsseldorf (Urt. v. 22.11.2019, Az. 38 O 110/19) ruled that the base price for dietary supplements in capsule form must be indicated.

Under the Price Indication Ordinance (PAngV), whoever commercially offers consumers goods in pre-packaged form, in open packaging, or as sales units without wrapping, by weight, volume, length or area, must indicate, in addition to the total price, the price per unit of measurement (base price), unless the base price is identical to the total price.

The court first established that the dietary supplements were goods in pre-packages. However, it was more problematic whether these dietary supplements in capsule form were offered by weight or volume.

This characteristic is satisfied if information on the fill volume of the goods offered in a sales unit is prescribed by law. Under the Food Information Regulation (LMIV), the net fill volume of the food product must be indicated for pre-packaged foodstuffs, which also include dietary supplements in capsule form. This must be done in units of volume for liquid products and in units of mass for other products.

For the dietary supplements in capsule form, a base price indication would therefore have had to be made in principle, according to the court.

Dietary supplements in capsule form: Not sold by number of units

According to an exception in the Food Information Regulation, the indication of the net fill volume is, however, not mandatory for foodstuffs which are normally marketed by number of units, provided that the number of units can be easily seen from the outside and easily counted, or is otherwise indicated in the labelling.

Foods which would normally be marketed by number of units are 'discrete' products such as fruit, vegetables, eggs and baked goods, that is, products where from the consumer's perspective the individual item constitutes a 'natural' unit of measurement. However, the court found that this does not apply to dietary supplements. This is because there are no natural units of measurement for dietary supplements; rather, they are manufactured and distributed in different forms.

Furthermore, an approach focusing on the capsules would restrict the definition of foodstuff from the outset to a specific form of administration chosen freely by the manufacturer. This would have the consequence that the test criterion of 'normally marketed by number of units' would frequently be rendered ineffective.

Conclusion

The question of whether the base price for dietary supplements in capsule form must be indicated remains disputed. The LG Düsseldorf and the Higher Regional Court (OLG) Düsseldorf (Urt. v. 15.8.2019, Az. 15 U 55/19) argue in favour of such an obligation. The Higher Regional Court (OLG) Celle (Urt. v. 09.07.2019, Az. 13 U 31/19), however, ruled that dietary supplements in capsule form are normally marketed by number of units, so that the indication of a base price is not required.

In case of doubt, pending a decision by the highest court (BGH), it is advisable as a precautionary measure to indicate the base price even for dietary supplements in capsule form.