Food safety monitoring: pillory halted in Baden-Württemberg, but permitted in Munich?

Two decisions on food safety monitoring, one provision – and a decisive dogmatic difference.

The official Internet publication of food law violations under § 40 Abs. 1a LFGB ranks among the most drastic instruments of modern consumer protection law and food safety monitoring. Hardly any measure unfolds a comparable pillory effect: naming by name, search engine visibility, media amplification – often with long-term economic consequences.

With the decision of the VGH Baden-Württemberg of 12.11.2025 – 9 S 987/25, which we have already reported on – and the decision of the VG München of 26.11.2025 – M 26a E 25.6819 – two recent decisions are now available which at first glance may appear contradictory. In fact, they complement each other – and show very clearly when defence is possible and when it is not.

Food law starting point: In food safety monitoring, transparency takes precedence over hazard prevention

40 Abs. 1a LFGB obligates the authorities to publish when a reasonably substantiated suspicion exists that a food business operator has violated hygiene requirements in non-negligible extent and a fine of at least 350 Euro is to be expected.

According to established case law, it is sufficient that the conditions determined by food safety monitoring are capable of evoking disgust or aversion in a normally sensitive consumer disgust or aversion.
A concrete health hazard or a laboratory finding is not required.

At the same time, this constitutes a serious interference with freedom of profession (Art. 12 GG), which is only permissible if the statutory requirements are strictly observed. It is precisely here that the recent decisions on food safety monitoring commence – however at different stages of the examination.

The Munich case: extreme hygiene deficiencies justify publication even after remediation

In the Munich proceedings, the matter concerned a food service establishment where food safety monitoring determined an extraordinarily high density of serious hygiene violations. Documented were inter alia:

• severe mouse and cockroach infestation,
• mouse droppings and urine in virtually all areas of the premises,
• dead animals in the immediate vicinity of exposed food,
• substantial cleaning and maintenance deficiencies,
• improper storage and thawing of sensitive products.

The conditions led to an officially ordered closure of the establishment. Although the deficiencies were subsequently remedied and the establishment was released, the authority nevertheless planned a publication under § 40 Abs. 1a Nr. 3 LFGB.

The VG München expressly confirmed the lawfulness of this publication. From the court's perspective, the decisive factor was:

The manner, extent and comprehensive distribution of the violations justified the assumption that foodstuffs had been treated or stored under unhygienic conditions. In particular, the massive pest infestation also warranted retrospectively a pillory publication – even if the deficiencies were later remedied.

Important:
The court did not identify a single passage of the publication text as materially disproportionate. This meant there was no basis whatsoever for any further restriction of the publication.

The case of the VGH Baden-Württemberg: Indivisibility alone was not decisive

The situation before the VGH Baden-Württemberg was different – and dogmatically fundamentally different.

There too, there had been considerable hygiene deficiencies including pest infestation which were identified by food inspection. However, a part of these shortcomings had been demonstrably completely and promptly remedied before the planned publication took place.

The Administrative Court had therefore regarded individual passages of the publication text as materially disproportionate:
In its view, these specifically named, resolved circumstances no longer justified a continuing pillory publication.

And here lies the crucial point which is frequently overlooked in practice:

The authority did not challenge this assessment.
It therefore accepted that certain text components were materially unlawful because they did not adequately take into account the deficiencies that had already been remedied.

This established for the VGH:
The publication text contained permissible and impermissible components.

Indivisibility as a consequence – not as a starting point

It was only on this basis that the VGH raised the second, decisive question:
May the remaining part of the publication text exist in isolation?

The VGH answered this question with a clear no and in doing so formulated the fundamental principle now central to the matter:

The publication text pursuant to § 40 Abs. 1a LFGB is generally indivisible.
If even a single part is unlawful, then the entire publication is impermissible,
unless there exists an extremely narrowly limited exception of genuine material independence.

The VGH found no such exception to exist because the individual findings did not stand in isolation beside one another but together bore the assessment of a "considerable pest infestation". The extraction of individual points would have altered the meaning of the entire text.

The result:
Complete inadmissibility of publication – not on account of downplaying the violations, but on account of uncontested partial illegality.

The decisive difference in a sentence

The Higher Administrative Court of Baden-Württemberg (VGH Baden-Württemberg) stopped publication by the food inspection authority not because defects had been remedied,
but because the authority accepted that this remediation made individual text passages disproportionate.

The Administrative Court of Munich (VG München) confirmed publication because the violations were so serious that not a single passage had lost its deterrent effect.

Consequences for practice: where defence applies – and where it does not

Both decisions establish a clear line for food enterprises:

In the case of extremely serious, widespread hygiene defects – in particular involving business closure – the substantive chances of success are low. Mere remediation of defects is then insufficient.

The key opportunities for defence lie rather in the precise analysis of the publication text:

Does the text correctly take account of which defects had already been remedied?
Is the materiality of each individual finding still sustainable?
Is there a uniform or a differentiated assessment?
Can a material partial illegality be established?

For only if a part of the text falls away, does the principle of indivisibility apply – and only then can publication as a whole be prevented.

Our legal recommendation

As soon as a hearing letter concerning publication pursuant to § 40 LFGB is received, immediate action should be taken. The decisive factor is not solely whether whether defects have been remedied, but how the authority deals with them in the publication text.

Anyone who takes a strategic approach at an early stage here can set crucial parameters even when faced with serious allegations by the food inspection authority – before the online pillory goes live and effectively takes on irreversible effect.

Our experts at AVANTCORE Rechtsanwälte in Stuttgart would be pleased to assist you with a targeted text and proportionality review as well as the consistent enforcement of your rights in interim legal protection proceedings.