Advertising with Protein before the Court of Justice of the European Union (EuGH) – Is '14g Protein' Really Permissible?

Advertising with Protein in the Legal Tension between HCVO and LMIV

The promotion of foodstuffs with nutritional claims is one of the strictest regulatory fields in European food law. Two regulations determine the playing field here: The Health-Claims Regulation (HCVO) establishes which claims are permissible, while the Food Information Regulation (LMIV) precisely regulates how nutritional values are to be stated.

Within this framework, a question of central importance for advertising with protein arises: May a permissible claim such as 'High Protein' be supplemented by an additional statement such as '14g Protein' – even though this is not provided for in the HCVO Annex? This is clarified by the current referral decision of the Federal Court of Justice (BGH) of 20.11.2025 – I ZR 2/25.

The concrete case: 'HIGH PROTEIN' and next to it '14g PROTEIN'

The defendant promoted a rice pudding prominently with the nutritional claim 'HIGH PROTEIN'. Directly next to it were clearly visible the notices '14G PROTEIN' or '14g PROTEIN per cup', although protein is not among the nutritional values whose isolated repetition is permissible under Art. 30 (3) LMIV.

The Zentrale für Wettbewerb (Central Office for Competition) saw in this form of advertising with protein an impermissible emphasis on individual nutrients. The Regional Court (LG) Munich I and the Higher Regional Court (OLG) Munich followed this view and prohibited the practice.

The Federal Court of Justice (BGH) considers the legal situation to be unresolved under EU law unclear – particularly because of the possible interaction of LMIV prohibition and HCVO permission – and has therefore referred the case to the Court of Justice of the European Union (EuGH).

Core Question 1: Is '14g Protein' a permissible concretisation of the claim 'High Protein'?

At the centre is Art. 8 (1) HCVO. The Federal Court of Justice (BGH) asks the Court of Justice of the European Union (EuGH) whether a permissible nutritional claim such as 'high protein content' may be supplemented by an additional, 'objectively correct', but not listed in the Annex of the HCVO statement.

On the one hand, there is the argument that claims such as 'High Protein' are by their nature vague. An additional statement such as '14g Protein per cup' could help consumers assess the nutritional value realistically. Under this view, the gram specification would be a permissible concretisation.

On the other hand, the Federal Court of Justice (BGH) points out that the HCVO Annex is exhaustive. Supplementary statements are not listed there. If therefore 'High Protein' is only permitted under certain conditions, additional statements must not go beyond this framework. Under this restrictive view, '14g Protein' would not be a concretisation, but rather an isolated and therefore impermissible repetition of a nutrient.

Key question 2: Must a specification comply with the conditions of the HCVO Annex?

If the Court of Justice of the European Union (EuGH) permits specifications in principle, the next question arises: May they be formulated entirely freely or must they comply with the same requirements as the claim itself?

The annex to the HCVO makes clear: advertising with protein for a product may use the claim "High Protein" only if at least 20 % of the calorific value comes from protein derive. For this assessment, not the absolute gram quantity, but the ratio to the energy content is decisive.

A statement such as "14g protein" could therefore give the impression that the absolute quantity is decisive – a "normative misleadingness" which the Court of Justice of the European Union (EuGH) has already critically assessed in other cases. This is precisely where the explosive nature of the case lies: if "14g protein" does not reflect the decisive criterion, this statement would arguably never be a permissible specification.

Systemic significance: HCVO vs. LMIV – which takes precedence?

The Federal Court of Justice (BGH) emphasises that the conflict between LMIV and HCVO cannot be resolved by simple priority rules. While the LMIV isolated repetitions prohibits, the HCVO may permit additional information in the context of claims.

The decisive point therefore is:

Does a permissible HCVO statement override the prohibition on repetition in the LMIV?

This is precisely what the Court of Justice of the European Union (EuGH) is now to clarify in a binding manner.

Practical consequences: The protein industry awaits clarity on protein advertising

The case affects not only rice pudding, but the entire market for protein products, fitness foods and high-protein foodstuffs. Most of these products combine claims such as "High Protein" with absolute quantity statements such as "20g protein".

Depending on the Court of Justice of the European Union (EuGH) decision, this could mean that in protein advertising

– such statements may in future be prohibited,
– only remain permitted in a narrow, claim-compliant form,
– or be declared permissible and thus marketing becomes considerably more liberal.

The outcome of the proceedings thus has considerable impact on product development, packaging design and advertising strategies of the entire industry.

Recommendation for practice: check legally compliant claims now – not just for protein advertising

Until the Court of Justice of the European Union (EuGH) decides, food companies should be extremely cautious with isolated nutritional information in the context of a claim – particularly in protein advertising. Even if the Federal Court of Justice (BGH) leaves a decision open, any breach of Art. 30 Abs. 3 LMIV remains subject to a cease and desist notice.

We therefore strongly recommend that claim combinations, nutritional information and packaging designs be reviewed legally before products are put on the market.

The experts for competition law and for food law of AVANTCORE Rechtsanwälte in Stuttgart support you in designing your HCVO-Claims, LMIV-Kennzeichnungen and advertising statements in such a way that they remain both legally secure and marketing-strong.