A German company had included “Felix Raspberry-Vanilla Adventure” in its range and advertised it with images of raspberries and vanilla, as well as the words “only natural ingredients” and “fruit tea with natural flavors”. In fact, the fruit tea does not contain any raspberry or vanilla ingredients or flavors.
The BGH considers this advertising to be misleading. It assumed that the consumer would be led to believe that the tea contained vanilla and raspberry ingredients or flavors due to the highlighted information “RASPBERRY-VANILLA ADVENTURE” and the images of vanilla blossoms and raspberries.
What does the Court of Justice of the European Union say about the raspberry-vanilla adventure?
The Federal Court of Justice has since suspended the proceedings and referred them to the Court of Justice of the European Union. The question to be clarified was whether the advertising of foodstuffs with pictorial motifs within the meaning of Art. 2 para. 1 lit. a para. 3 of the Directive on the labeling of foodstuffs may give the impression by means of a pictorial representation that it is actually present in the product, although the list of ingredients pursuant to Art. 3 para. 1 No. 2 of that directive precludes this.
The ECJ (judgment of 04.06.2015, Case C-195/14) has affirmed an infringement by the company in terms of consumer protection. It is unacceptable that the labelling of a foodstuff and the manner in which it was carried out can give the impression of the presence of a certain ingredient in the foodstuff through the appearance, the name or the pictorial representation of that ingredient, although it is not actually present in the foodstuff and this is only apparent from the list of ingredients on the packaging of the foodstuff.
In short: what is shown in the image must also be contained in the product.
Protect consumers from being misled
The BGH drew the necessary conclusion. If “Felix Raspberry Vanilla Adventure” does not contain raspberries or vanilla, it may not be advertised as such. Awareness of the list of ingredients does not rule out misleading advertising. The buyer could actually expect raspberry and vanilla ingredients or corresponding flavors, especially from the first impression.
The BGH’s decision highlights the importance of consumer protection. Consumers will certainly take a closer look at the content of the product in future. However, it should be noted that a breach of consumer protection guidelines cannot be assumed across the board and that it depends on the individual case. Before the next advertising campaign or product advertisement is released, it should be carefully checked by a lawyer.