Unfair advertising – Ginkgo extract

Advertising with health-related claims is strictly regulated for foodstuffs in order to protect consumers. According to these rules, a product may only be advertised with the effect it produces if this has already been scientifically proven before the publication of the corresponding advertising statements. The Higher Regional Court (OLG) Cologne confirmed this in another case.

Fresh ginkgo leaves with dried herb and capsules on a white background

The supplier of a dietary supplement containing ginkgo extracts advertised its product, among other things, with the following statements:

• "For better memory and more quality of life"
• "Maintains fine blood circulation"
• "Strengthens your nerve cells"
• "Against the risk of infarction in your ears. Sudden sensorineural hearing loss is like a heart attack of the ears. Ginkgo leads to faster regeneration in the case of sudden hearing loss"
• "Ginkgo supports the maintenance of social competencies in people with dementia"

The list could continue indefinitely, as the dispute involves more than 30 statements, all of which promise positive health effects.

It is therefore not surprising that the advertising company was sued for an injunction.

The court's decision

By Urteil vom 06.11.2015 – Az. 6 U 65/15the OLG Cologne decided, as the Regional Court (LG) Cologne had already done in the first instance, that the advertising was misleading and therefore unfair competition.

The advertising statements would contain the assertion that the consumption of the dietary supplement was suitable for achieving an improvement in brain function, preventing age-related diseases such as Alzheimer's, dementia and memory loss, and alleviating such diseases as well as other diseases such as, for example, tinnitus, sudden hearing loss and venous disease, as well as strengthening nerves and concentration ability. However, there were no generally recognised scientific proofs for the advertising statements.

In the court's view, an expert opinion obtained during the course of proceedings cannot provide scientific proof either, as this must have been available at the time the advertising statements were made.

Conclusion

When advertising with health-related aspects, caution is warranted – particularly in the absence of recognised scientific evidence for the claims. In order to avoid disputes in competition law, legal advice is therefore particularly recommended in the field of food advertising.