Advertising slogan 'mild cigarettes' permissible?

May cigarettes be advertised as 'mild' or does such advertising constitute unfair competition misleading consumers? The Regional Court (LG) Hamburg has now decided this legal question in first instance.

The Federal Association of Consumer Centres and Consumer Organisations – Verbraucherzentrale Bundesverband e.V. (vzbv) took action against the tobacco company British American Tobacco (BAT), which had advertised the Lucky Strike brand. BAT had advertised the cigarettes on large-scale posters with the terms 'MILD THING', 'TAKE A WALK ON THE MILD SIDE' as well as 'LUCKIES MIT EXTRA MILDEM GESCHMACK'. The vzbv considered this advertising to be unfair competition because it misled consumers about the continuing high health risk from consumption of the 'mild cigarettes'.

BAT argued in response that the relevant circles of commerce would understand the advertising of Lucky Strike cigarettes as 'mild cigarettes' primarily in terms of taste and therefore no misleading occurred.

Court's decision

By judgment of 11.5.2016 (Az. 416 HKO 47/16) the Regional Court (LG) Hamburg ruled that the advertising slogans 'MILD THING' and 'TAKE A WALK ON THE MILD SIDE' constitute unfair competition and must therefore be discontinued.

The Regional Court (LG) Hamburg thereby followed the reasoning of the vzbv. Describing cigarettes as mild trivializes the dangers emanating from smoking. The advertising creates the impression in the relevant circles of commerce that the health risk could be disregarded more readily with cigarettes advertised as 'mild' than with other cigarettes.

This was not the case, however, with the advertising 'LUCKIES MIT EXTRA MILDEM GESCHMACK'. The term 'mild' here was to be understood explicitly and exclusively as referring to taste and thus does not mislead the relevant circles of commerce into believing that the 'mild' cigarettes are healthier than others.

Conclusion

The Regional Court (LG) Hamburg has thus determined that tobacco companies may only advertise with the slogan 'mild cigarettes' if that statement refers exclusively to the taste of the cigarettes. If the relevant circles of commerce can discern a health-related assertion in the advertising with 'mild cigarettes', the corresponding advertising slogan is unfair and thus constitutes unfair competition.