Advertising with detox for food products inadmissible!

Advertising with detox may constitute an inadmissible health claim within the meaning of the Health Claims Regulation. The BGH has already ruled on this. The Landgericht Koblenz (Regional Court of Koblenz) has now also given a "detox" juice short shrift.

A competition association representing the commercial interests of its members in the food industry took action against an entrepreneur. The well-known manufacturer of fruit and vegetable juices had its products distributed through food retail. One product bore, inter alia, the designation "DETOX", which was marked on the label with an asterisk reference "Contains Vitamin C, which contributes to the protection of cells from oxidative stress."

The competition association saw this as a violation of the Health Claims Regulation (HCVO). It was an inadmissible health claim.

"Detox" = specific health claim

The LG Koblenz (Regional Court of Koblenz) (judgment of 17.12.2019, Az. 2 HK O 17/19) ruled that the health claim "Detox" does not meet the requirements of the HCVO even with the asterisk reference and is therefore inadmissible.

First, the court established that "Detox" is a specific health claim. A health claim is present if the claim states, suggests or even merely indirectly expresses that there is a relationship between a food category, a food or one of its constituents on the one hand and health on the other hand.

In agreement with the BGH, the judges took the view that the designation "Detox" creates the impression in an average consumer that consumption of the juice has a "detoxifying effect" because of the substances it contains and thus leads to an improvement in health status. Accordingly, it is a health claim.

Furthermore, the court stated that with regard to the admissibility of health claims, a distinction must be made between specific and non-specific health claims. Here too, the LG Koblenz adopted the BGH's view that "Detox" constitutes a specific health claim within the meaning of the HCVO. For it establishes a direct causal relationship between the advertised product and a function of the human organism (detoxification).

Advertising with detox is therefore inadmissible!

In principle, health claims are prohibited unless, inter alia, they are not approved in accordance with the HCVO and are not included in the list of approved claims. The asterisk reference in relation to advertising with detox does not help to ensure that the advertising complies with the requirements of the HCVO.

For the protection of cells from "oxidative" stress (as stated in the asterisk reference) has nothing to do with detoxification ("Detox") from the perspective of the average consumer. Accordingly, the health claim "Detox" does not meet the requirements of the HCVO even with the asterisk reference, which results, inter alia, in claims under competition law for cease and desist orders.

Conclusion

Advertising with health claims for food products must always comply with the requirements of the Health Claims Regulation if one wishes to avoid competition law cease and desist letters. This can also apply to designations that are commonly used more frequently or that happen to be in fashion.