The Higher Regional Court of Frankfurt am Main has ruled that an alcohol-induced “hangover” must be classified as an illness (judgment of 12.09.2019, ref. 6 U 114/18). Advertising claims according to which a dietary supplement is supposed to prevent such an alcohol hangover or reduce its consequences violate the prohibition on assigning disease-related properties to food.
Association sued manufacturer of dietary supplements
The proceedings were based on the complaint of an association whose tasks include safeguarding the commercial interests of its members, in particular respecting the rules of unfair competition. The association took action against a manufacturer of dietary supplements that advertised two of its products as preventing or alleviating the symptoms of a hangover.
The defendant had advertised two of its products, in the form of powdered sticks (“Drink”) and a drinkable mixture (“Shot”), with statements such as “Anti Hangover Drink” or “Anti Hangover Shot”, “Naturally for hangovers”, and “With our Anti-Hangover Drink you provide your body with natural, antioxidant plant extracts, electrolytes and vitamins”.
OLG confirms decision of the LG
After the Regional Court of Frankfurt am Main had already essentially ruled in favor of the plaintiff (judgment of 08.06.2018, Ref.: 10 O 67/17), the defendant appealed.
The OLG confirms the judgment of the LG and emphasizes with reference to the Food Information Regulation (LMIV):
“Information about a food must not attribute to it the properties of preventing, treating or curing a human disease or give the impression of such properties”.
OLG Frankfurt, judgment of 12.09.2019 – 6 U 114/18
Advertising claims suggested prevention and alleviation of hangover symptoms
The defendant’s advertising claims here would suggest to the target public, which is primarily young consumers who consume alcohol while partying, that the advertised product is able to prevent or reduce hangover symptoms.
Symptoms of a “hangover” are not within the natural fluctuation range of the human body
The OLG also justified the fact that a “hangover” is precisely an illness with a broad interpretation of the term “illness” in favor of the most effective health protection possible. Illness is therefore to be understood as any, even minor or temporary, disturbance of the normal condition or normal activity of the body. The symptoms of a hangover, such as headaches, nausea or tiredness, are not within the natural fluctuation range of the human body, but are caused by the consumption of alcohol. The fact that the symptoms disappear on their own without medical treatment is irrelevant. Furthermore, the fact that the medical term “Veisalgia” exists for the “hangover” speaks in favor of such an interpretation.
No reference to the Health Claims Regulation
Nor can the defendant rely on the fact that its advertising constitutes a permissible health claim in the form of a claim approved in accordance with the Annex to the Health Claims Regulation (HCVO). The claim to which it refers is not consistent with the hangover symptoms described here.