Federal Court of Justice
Communication of the press office
For beer is not allowed with the information
"agreeable" are won over
Judgment from the 17th of May, 2018 – I ZR 252/16
The I civil senate, among the rest, responsible for the competitive right of the Federal Court of Justice has decided on the 17th of May, 2018 that the use of the concept is inadmissible "agreeable" in a beer advertisement.
The defendant pursues a brewery in the Allgäu. She uses since the 1930s for her beers the advertising slogan "Welfare bekomms!". In her web site she advertised to certain beer kinds with an alcoholic content of 5.1%, 2.9% and 4.4% under use of the concept "agreeable".
The plaintiff, a consumer protection association, holds the advertising statement "agreeable" for a health-related information in terms of article. 2 paragraphs 2 No. 5 of the order (EC) No. 1924/2006 about nutritional value-related and health-related information about food, after article. 4 paragraphs 3 unterparagraph 1 of the order (EC) No. 1924/2006 with alcoholic beverages with more than 1.2 per cent by volume is inadmissible. He has taken up the defendant on omission and allowance of Abmahnkosten.
The district court has granted to the complaint. The appeal of the defendants achieved no success. The Federal Court of Justice has rejected the check admitted by the court of appeal of the defendants.
The Federal Court of Justice has decided, that after article. 4 paragraphs 3 of the order (EC) No. 1924/2006 with alcoholic beverages with more than 1.2 per cent by volume health-related information not only in the labelling of the products, but also in the advertisement for these drinks is forbidden. A "health-related information" is given if with the information an improvement of the state of health is promised thanks to the consumption of a Lebensmittels. However, an information is also gesundheitsbezogen if with her is expressed, the consumption of the Lebensmittels has on the health no injurious effects which can be connected in other cases with the consumption of such a Lebensmittels. After the statements of the court of appeal the concept is understood "agreeable" by the appealed traffic circles as "healthy", "good" and "slightly digestible". He expresses by a use for food that this will well stand in the digestive system well taken up and - also with lasting consumption-. After the statements of the court of appeal this concept is also understood in the connection of the complained advertisement so. Of the advertisement cannot be taken that "agreeable" only the taste of the beer should be described with the concept.
LG castle Ravens - judgment from the 16th of February, 2016 - 8 O 51/15
OLG Stuttgart - Judgment from the 3rd of November, 2016 - 2 U 37/16
The decisive regulations are:
Article. 2 paragraphs 2 No. 5 of the order (EC) No. 1924/2006
The expression "health-related information" calls every information with which explains, is suggested or is expressed even indirectly that, on the other hand, a connection exists between a food category, a food or one of his components on the one hand and the health.
Article. 4 paragraphs 3 Booking. an of the order (EC) No. 1924/2006
Drinks with an alcoholic content of more than 1.2 per cent by volume may carry no health-related information.
Karlsruhe, 17th of May, 2018
Press office of the Federal Court of Justice