Food hygiene deficiencies on the public naming and shaming board: Hessian Higher Regional Court confirms publication despite swift remedial action

Food hygiene deficiencies on the public naming and shaming board pursuant to § 40 LFGB – an instrument of food control that remains controversial

Bydecision of 2 March 2026 (Az. 8 B 134/26) theHessian Higher Regional Court (Hessischer Verwaltungsgerichtshof)has once again addressed the requirements for publication pursuant to § 40 Abs. 1a LFGB and made important statements on thedivisibility of publication texts, on theimmediacy of publicationand on thesignificance of already remedied hygiene deficiencies.

The publication of food law violations on the internet – colloquially often referred to as the"food naming and shaming board"– has for years been one of the most legally and politically controversial instruments of consumer protection law. The legal basis is§ 40 Abs. 1a LFGB, which obliges authorities to inform the public of certain substantial violations of food law provisions.

For affected businesses, such a publication is regularly associated with considerable consequences. The public disclosure of hygiene deficiencies can lead tosubstantial reputational damage, loss of sales and long-term image damage. Accordingly, affected food businesses frequently attempt to prevent publications by way ofinterim legal remedies before the administrative court.

This was precisely what was at issue: hygiene deficiencies in the fresh meat and cheese counter of a supermarket

The starting point of the proceedings was anofficial food inspection on 13 October 2025at a supermarket branch in Hesse. During the inspection, the responsible authority identified substantialhygiene deficiencies in the fresh meat and cheese counter.

According to the inspectors' findings, the deficiencies included in particularold soiling in the meat counter area, including dried-on meat juice as well as a mould-like biofilm in areas around the counter ventilation systems. Significant contamination of internal surfaces was also found in the fresh cheese counter. In addition,temperature exceedances in stored food itemswere documented in some self-service refrigeration units.

The authority subsequently ordered, in particular:

• immediatedeep cleaningof the affected counter areas,
• aban on processing and dispensing of foodfrom the affected counters,
• thesecuring and disposal of unwrapped meat and sausage products.

Upon re-inspection, the hygiene deficiencies were considered remedied a few days later. Nevertheless, the authority planned to publish the identified violations on the Hessian internet platform"Verbraucherfenster"pursuant to § 40 Abs. 1a LFGB.

The affected business challenged this publication by seeking interim legal relief.

The legal considerations of the Hessian Higher Regional Court

The Hessian Higher Regional Court confirmed in the appellate proceedings essentially the decision of the lower court and held the publication of the hygiene deficiencies to belawful.

Hygiene violations exist even in cases of abstract contamination risk

The court made clear that for a food law violation,no actual contamination of food is required. It is sufficient that there be arisk of adverse effect.

In the court's view, the identifiedOld contamination and biofilms in the immediate vicinity of exposed foodstuffssuch a danger. The fact that individual foodstuffs were packaged or wrapped does not change this either. When cutting or repackaging, transmission of germs can occur at any time.

Publication permissible even after remediation of hygiene deficiencies

Particularly relevant to practice is the court's statement regarding remediation of hygiene deficiencies.

That the identified deficiencies were remedied only a few days after the inspection does not make the publication disproportionate in the court's view. It is decisive only that the published text transparently points out not disproportionate. The decisive factor is merely that the publication text transparently indicates that and when the deficiencies were remedied.

Publication texts can be severable

Another key statement concerns the severability of the publication text.

The administrative court had previously prohibited part of the planned publication relating to temperature violations in a freezer facility. Nevertheless, the court deemed the remaining passages concerning hygiene deficiencies in the fresh meat and cheese counter lawful.

The Hessian Administrative Court of Appeal confirmed this view. Multiple violations could be legally separated if they are substantively independent of one another.

No further hearing required for editorial amendments

The objection that the published text differed from the originally announced text also remained unsuccessful. A further hearing is not required if amendments are merely editorial in nature or result from court orders.

Publication continued promptly

Finally, the Hessian Administrative Court of Appeal also confirmed the promptness of publication.

Time delays arising from the exercise of procedural rights of the parties or court proceedings do not generally preclude promptness.

Classification within recent case law on the food hygiene index

In the recent past, we have frequently reported on decisions concerning the food hygiene index under § 40 Abs. 1a LFGB (see below). Hardly any instrument of food safety supervision is currently subject to such intensive judicial review as the official publication of food hygiene violations on the internet.

In recent case law, questions have particularly centred on

• the design of the publication text,
• the promptness of publication,
• and the scope of judicial review in summary proceedings.

Particular attention has been drawn to a decision by the VGH Baden-Württemberg of 12 November 2025 (Az. 9 S 987/25) gained. The court emphasised there that the publication text formulated by the authority is generally to be regarded as a unified subject matter of dispute. If a central part of the presentation is objected to as unlawful, this can in individual cases lead to the result that the entire publication is unlawful because the individual statements cannot readily be separated from one another.

In addition, the Munich Administrative Court also dealt with Order of 26 November 2025 (Az. M 26a E 25.6819) with the publication of food hygiene violations. There, the court emphasised that already an abstract danger of adverse effect on foodstuffsmay be sufficient for a corresponding accusation and actual contamination does not need to be proven.

Against this background, no fundamental contradiction can be discerned between these decisions and the current decision of the Hessian Administrative Court (HVerwGH) rather, it fits into the line of current case law.

The order from Baden-Württemberg was essentially based on the specific wording of the publication text in that case, in which several accusations were closely linked and together formed the authority's overall assessment of the hygienic situation. It was precisely this close connection that meant that isolated consideration of individual passages was not readily possible.

By contrast, in the Hessian proceedings, a different constellation was present. The ascertained hygiene deficiencies in the fresh meat and cheese counter could be assessed independently of the temperature violation that was also discussed. The individual objections were therefore not in an indissoluble connection.

The decision of the Hessian Administrative Court (HVerwGH) thus demonstrates above all that the question of divisibility of a publication text depends significantly on the specific design of the authority's presentation and the particular facts of the case.

Recommendation for food business operators

The decision of the Hessian Administrative Court (HVerwGH) shows once again that the food business register pursuant to § 40 Abs. 1a LFGB remains a sharp instrument of food monitoring.

For affected businesses, it is therefore particularly important to:

• take a timely position already in the course of the hearing on the planned publication,
• have the specific publication text legally reviewed,
• and, if necessary, immediately request emergency legal protection.

Especially because publication texts are increasingly detailed, the specific wording of the authority's presentation can have considerable influence on the legal assessment.

Legal advice in food law

Our law firm AVANTCORE Rechtsanwälte in Stuttgart advises food manufacturers, traders and restaurant operators nationwide on all matters of food law and food monitoring.

If your business is affected by a planned publication, we recommend early legal review in order to avoid reputational damage as far as possible.

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