Food designation "Energy & Vodka" compatible with consumer protection?

A manufacturer of alcoholic mixed drinks was sued for an injunction because this manufacturer placed one of its products with the designation "Energy & Vodka" on the market. The Higher Regional Court (OLG) Hamm had to decide whether this constitutes a breach of the Health Claims Regulation and is thus anticompetitive.

An association for compliance with food law and competition law regulations in the spirits industry issued a cease-and-desist letter to a beverage manufacturer because this manufacturer distributes an alcoholic mixed drink with 10% vol. alcohol under the designation "Energy and Vodka". The mixed drink consists of approximately one quarter vodka and otherwise of a caffeinated beverage.

The manufacturer refused to issue a declaration of undertaking, arguing that the designation chosen by it did not suggest to consumers or even merely indirectly convey that the product possessed special positive nutritional properties.

Court Decision

By Judgment of 10.07.2012 – Az. I-4 U 38/12 the Higher Regional Court (OLG) Hamm ruled that the designation of an alcoholic mixed drink with "Energy & Vodka" must be discontinued, since according to the Health Claims Regulation enacted for consumer protection, beverages with an alcohol content of more than 1.2 percent by volume must not bear any nutrition and health claims.

A nutrition and health claim is understood to mean any claim by which it is stated, suggested or even only indirectly conveyed that a foodstuff has special positive nutritional properties. "Energy" is indeed such a nutrition and health claim with which consumers are suggested that the consumption of the drink advertised in this manner would provide them with exactly the advertised "energy". This is misleading and thus anticompetitive.

Conclusion

When advertising alcoholic beverages with an alcohol content of more than 1.2 percent by volume, strict rules must be observed, which if breached can lead to costly cease-and-desist letters. In the present case, the beverage manufacturer did not accept the appellate court judgment and appealed, so that the Federal Court of Justice (BGH) as the final instance will decide on this matter.