In its ruling of May 17, 2018, the BGH ruled that the description of a beer as “digestible” is also inadmissible in advertising (case reference: I ZR 252/16). The BGH thus further extends its case law on health claims.
Beer described as “digestible” in advertising
The dispute revolved around a brewery in the Allgäu region. It had been using the advertising slogan “Wohl bekomms!” for its beers since the 1930s. On its website, it advertised certain types of beer – which had an alcohol content of 5.1%, 4.4% and 2.9%, among others – using the word “digestible”.
A consumer protection association considered the advertising claim “digestible” to be a health claim within the meaning of Art. 2 Para. 2 No. 5 of the Health Claims Regulation (Regulation (EC) No. 1924/2006 on nutrition and health claims made on foods). Art. 4 para. 3 subpara. 1 of the Health Claims Regulation also declares that such health claims in connection with alcoholic beverages with more than 1.2% by volume are not permitted.
Consumer protection association pays attention to compliance with the Health Claims Regulation
The consumer protection association therefore sued the Allgäu brewery for injunctive relief and demanded reimbursement of the warning costs. The Ravensburg Regional Court already upheld the claim, but the brewery’s appeal to the Higher Regional Court was unsuccessful, as is now the appeal on points of law. The BGH rejected the Allgäu brewery’s appeal.
Health claims for alcoholic beverages inadmissible
In its ruling, the BGH clarified that health claims for alcoholic beverages with more than 1.2% by volume are not only inadmissible on the labeling of the products. Rather, the protective purpose of the Health Claims Regulation also extends to advertising for alcoholic beverages.
Beers are not “digestible”
A health claim always exists if the claim promises an improvement in health thanks to the consumption of a food. A claim is also health-related if it expresses that the consumption of the product has no harmful effects.
In connection with beer, the relevant public usually understands the term ‘digestible’ to mean ‘healthy’, ‘beneficial’ and ‘easily digestible’. It expresses that the product is well absorbed by the digestive tract and is well tolerated even with long-term consumption.
According to the judges in Karlsruhe, the wording was also understood in this way in relation to the Allgäu beer varieties. It could not be inferred from the advertising that the term “digestible” was only intended to describe the taste of the beer.