1. The FCJ had to answer the question whether the advertising of a Bavarian brewery for its beer specialties on its website with the statement that the advertised beer is “digestible, palatable – but not heavy” or “refreshingly digestible” is permissible. A Berlin consumer protection association filed a complaint against this advertising. In its decision of May 17, 2018, the FCJ confirmed the decisions of the previous instances according to which the challenged advertising statements constituted a violation of Article 4 (3) sub-para. 1 of Regulation (EC) No 1924/2016 (Health Claims Regulation) and thus constituted an unfair commercial act within the meaning of § 3a German Act Against Unfair Competition (breach of law) (cf. para. 13 et seq.).
2. According to Article 4 (3) subpara. 1 Health Claims Regulation, beverages containing more than 1.2 % by volume of alcohol shall not “bear” “health claims”.
The FCJ first states that the beer specialties advertised by the brewery “bear” the contested information within the meaning of this provision. Referring to the ECJ’s decision of September 06, 2012 “Deutsches Weintor” (C-544/10; GRUR 2012, 1161), the FCJ states that beverages as liquids cannot “bear” a health claim in the sense that they are physically attached to the claim. Therefore, the provision must be interpreted as meaning that beverages “bear” a health claim if the containers in which they are placed bear an indication which clearly refers to the beverages. This includes – in particular – labels or neck loops (cf. para. 23).
3. However, the FCJ interprets the term “bear” even further and states that the term includes not only information attached to the product by means of labels or neck loops, but also corresponding advertising statements on the internet for the products (cf. para. 26 et seq.).
The FCJ justifies this with Article 1 (2) subpara. 1 Health Claims Regulation, according to which the Regulation shall apply not only to nutrition and health claims made in the labelling or presentation, but also for claims in advertising of food. Referring to the objective of the Regulation to ensure a high level of consumer protection, the FCJ sees no reason to restrict the wording of Article 4 (3) subpara. 1 Health Claims Regulation only to health claims on the containers of alcoholic beverages.
4. The FCJ further states that the term “digestible” is a “health claim” within the meaning of Article 2 (2) no. 5 Health Claims Regulation (cf. para. 32 et seq.). According to Article 2 (2) no. 5 of the Regulation, “health claim” means any claim that states, suggests or im-plies that a relationship exists between a food category, a food or one of its constituents and health.
5. The FCJ also interprets the term “health claim” broadly in accordance with the ECJ’s decision “Deutsches Weintor”. According to the FCJ, “health claims” also includes any claims expressing that there are no negative or detrimental effects on health which in other cases go hand in hand with the consumption of the food, or that such effects are less significant. In that regard, account should be taken not only of the effect of a single consumption of a certain quantity of a foodstuff, but also of the effect of repeated, regular or even frequent consumption of that foodstuff (cf. para. 34).
6. Against the background of the ECJ’s decision “Deutsches Weintor”, the FCJ expressly rejects its previous opinion in earlier decisions that “digestible” is not health-related if it merely expresses that the product does not burden or impair the body and its functions and thus does not express that the product has a health-promoting effect (cf. para. 36).
In the present case, the FCJ is now of the opinion that the target public understands the term “digestible” as “good or easily compatible” (cf. para. 53).
7. The defendant brewery argued that the term “digestible” was a description of beer traditionally used in the German brewing industry. However, this did not convince the FCJ. With regard to that argument the FCJ is of the opinion that the term “beer” as a category of alcoholic beverages does not contain any health claim and that the category “digestible beers” as such does not exist for alcoholic beverages (cf. para. 49). Furthermore, the term “digestible” does not refer to the taste, enjoyment or adipsous effect of the beer, but to health (cf. para. 50).
8. The conclusion of the FCJ’s decision is that the prohibition on health claims for alcoholic beverages is not limited to indications on their containers, but also applies to health claims in advertising. In addition, the term “health claim” covers not only any claim of improvement in health status due to consumption of the advertised food, but also claims expressing that the continued consumption of a food is not detrimental to health.
