Impermissible advertising claim for dietary supplements

Advertising with health-related claims is strictly regulated for foodstuffs in order to protect consumers. This is also demonstrated by the case of "Repair Capsules", which now had to be examined by the Federal Court of Justice. Here, dietary supplements were advertised in an impermissible manner.

A provider of dietary supplements advertised its product with the following statement:

"With the improved formula and new valuable ingredients, our new Repair Capsules PREMIUM provide beautiful skin, full hair and firm fingernails – now even more effective – […]"

The Association for Fair Competition (Verband Sozialer Wettbewerb) takes the view that the advertising claim constitutes a specific health-related claim within the meaning of the Health Claims Regulation. Accordingly, the association proceeded against the advertising company seeking cessation and reimbursement of warning letter costs.

The decision of the BGH

The BGH, like the lower courts before it, ruled in favour of the association. By judgment of 07.04.2016 – Az. I ZR 81/15the BGH also classified the advertising claim as a health-related claim within the meaning of the Health Claims Regulation.

A statement should be regarded as a specific health-related claim in this sense if it establishes a causal relationship between a nutrient, a substance, a foodstuff or a food category on the one hand and a specific bodily function on the other hand that is capable of scientific proof. It is immaterial that the claim uses colloquial vocabulary rather than medical terminology.

The BGH further stated that a statement which the relevant circles understand to mean that a product can eliminate damage to skin, hair or fingernails is not materially identical to permitted claims that a particular nutrient contributes to the maintenance of normal skin, hair or nails.

Conclusion

The relevant circles understand "Repair" to mean that the product can eliminate damage to skin, hair and fingernails. However, advertising is only permitted with reference to the maintenance of the normal condition. The advertising claim goes beyond this and is therefore impermissible.