Square, practical, defective?

Ritter Sport's chocolate is obviously not defective. In a recent judgment, the Regional Court (LG) Munich I has prohibited statements by the Stiftung Warentest relating to Ritter Sport's full nut chocolate.

Stiftung Warentest had tested various nut chocolates and published the results in November 2013 on its website and in its magazine. It gave the full nut variety from Ritter Sport a rating of defective because the chemically produced flavoring substance piperonal had been detected in the chocolate. The ingredients list, which stated only natural flavoring, was therefore misleading. Due to the misleading information, the nut chocolates should not have been sold. They were therefore not marketable.

Ritter Sport opposed these allegations and countered that the alleged finding by Stiftung Warentest was false, as the substance piperonal could be detected in a variety of natural botanical sources (such as, for example, pepper, vanilla, sassafras oil). For Ritter Sport chocolate, the flavoring substance piperonal is obtained from plant-based starting materials through approved procedures in accordance with the European Flavourings Regulation.

Stiftung Warentest maintained its allegations and countered that the chocolate contained 0.3 mg piperonal/heliotropin per kg. It had determined that piperonal is produced industrially through chemical oxidation. The manufacturing process did not comply with the European Flavourings Regulation.

Subsequently, Ritter Sport successfully applied for a preliminary injunction. Stiftung Warentest lodged an objection to this, on which the Regional Court (LG) Munich I had to decide.

On the court's decision

In its decision (judgment of 13.01.2014 – 9 O 25477/13, see press release) the court confirmed that the statements by Stiftung Warentest violated the rights of Ritter Sport. In the context of balancing interests, the court concluded that Stiftung Warentest could in principle rely on a far-reaching freedom of expression, but that this had its limits in the likewise protected interests of Ritter Sport. The position of the chocolate manufacturer on the market must not be impaired in an unfair manner.

Stiftung Warentest exceeded this limit. The court justified this on the grounds that the reporting by Stiftung Warentest was disproportionate to the tasks and objectives of objective consumer information. Essentially, Stiftung Warentest had concerned itself with compliance with the European Flavourings Regulation and not with protecting consumers from dangers. One cannot speak of a fair product test if it is based on an overly narrow interpretation of the flavoring regulation.

Conclusion:

Freedom of expression is not granted without limits even to Stiftung Warentest – whose reporting is essentially intended to serve consumer information. Rather, what matters is what is the focus of the reporting and to what extent this violates the rights of third parties. The judgment is not yet final and Stiftung Warentest has already announced in its press release that it will appeal against the judgment. It remains to be seen whether this preliminary result will be confirmed by the Higher Regional Court (OLG).