Health-related advertising (health claims)Companies often advertise the health-promoting effects of food and dietary supplements, because consumers feel particularly addressed by health-related advertising. However, in order to protect consumers from being unfairly misled, health advertising is only permitted within narrow limits. Product-related statements such as "The product makes you smart," "The product recovers memory," or "The product increases performance and thinking ability" violate applicable competition law. Here you can find out everything about when and how you are allowed to advertise with health claims.
Coronavirus: warnings due to misleading advertising – dietary supplements should protect against Covid-19 or. cure it
The Coronavirus (Covid-19) determines just our whole life, but also the advertisement. Many suppliers of dietary supplements advertise that their products protect against covid-19 infection or that their products are free of covid-19. can cure this.
Such advertising statements are misleading and inadmissible according to the law against the unfair competition (UWG) as well as the Heilmittelwerbegesetz (HWG). Food supplements are not intended to prevent or treat disease, nor can they prevent infection with a virus.
Dietary supplements, as the name suggests, only serve to supplement the general diet, but cannot replace it. Foodstuffs, which also include dietary supplements, may therefore not be advertised with healing properties.
Health-related claims in the sense of the Health Claims Regulation are only permissible if they have also been approved by the regulation. No such approvals have yet been obtained for the corona virus, d.h. All health-related statements associated with a food product and the Corona virus are inadmissible and can lead to costly warnings.
Already now competition associations, like the Federal Office for Consumer Protection, control such advertising statements and ie warnings. If you are also affected by such a warning, we will be happy to help you. Send us your warning letter for a free initial assessment.
What are Health Claims?
As consumers try to eat as healthfully as possible, many manufacturers of food products and especially of dietary supplements resort to making their Attributing beneficial properties to products. If they refer to the health refer to, one speaks of so-called health claims.
differences must be health claims of promise a cure. For if a manufacturer advertises his product as having a cure or prevent diseases or other ailments could, then it is not more suppliers of food or nutritional supplements, but supplier of remedies. At remedies are understood to be medicinal products, medical devices and any other means or process used to treat or detect human ailments. For the advertising of remedies apply even narrower limits than for advertising with health claims. A health claim A health claim, on the other hand, only promotes a nutritional value health-promoting effect.
In the Regulation on nutrition and health claims made on foods or Health Claims Regulation (HCVO) are not only the health-related, but also the nutrition claims regulated. Nutrition claims are claims which state, for example, that a product contains particularly little sugar or fat.
What does the health claim regulation?
To protect consumer interests, the possibilities of health-related advertising for food and food supplements have been regulated by the EU. The HCVO regulates that no general and unverifiable health-promoting effects of a food or food supplement are advertised may be made. However, the regulation contains a list of over 200 permitted health claims, each refer to specific ingredients, vitamins and minerals of a product. These legally stipulated information ("claims") may always be used for advertising purposes if a product contains the corresponding ingredients in sufficient quantities.
Health Claims – What is allowed?
For claims according to the HCVO initially some generally binding specifications state. As statement is to be understood first of all everything which is not prescribed by a law, which therefore does not necessarily have to be mentioned on the packaging or in the advertising, cf. Type. 2 para. 2 No. 1 HCVO. This very broad definition applies to all those who place products on the market. food is placed on the market by the person who holds it out for distribution. The HCVO is therefore not only for the manufacturers applicable, but also for any trader.
Basically by type. 3 HCVO that the nutritional and health claims are statements not false, ambiguous or misleading may be. In addition, the claims not the cast doubt on the safety and suitability of other foods or refer to physical changes, which cause fear in the consumer could. Likewise, the claim not stimulate excessive consumption of the food or trivialize them. Finally not the Impression be awakened to the fact that a sufficient nutrient supply not through a balanced and varied nutrition could be achieved.
For products containing alcohol applies according to type. 4 Abs. 3 HCVO that they not with health claims may be provided. nutrition claims may only made about the fact that a low alcohol content is contained or that alcohol or calorific value reduced were. On the other hand, a claim that beer is digestible, for example, is not permitted.
By type. 5 HCVO must comply with average consumer the indications understand. If a nutritional or physiological effect is claimed, then this must be effect is generally recognized and scientifically proven its. The nutrient must, in a reasonably expected portion present in sufficient quantity respectively, just not present be necessary to produce the claimed effect. Likewise, the nutrients must be in a form that is usable by the human body and the claim must refer to the ready-to-eat product.
In other words, the nutrients must not be lost through necessary preparation or be available only in compounds that cannot be absorbed by the body.
When is a claim health-related or nutrition-related??
The HCVO sets different requirements for advertising with health claims and nutrition claims respectively. Therefore, a distinction between the two terms is necessary. Nutrition claims refer to the particularly positive nutritional properties of a product. This either contains a particular calorific value or particular nutrients or other substances in reduced or increased amounts or does not contain them at all. It is sufficient for a claim that the positive properties are suggested or only indirectly expressed.
According to the wording of the regulation (§ 2 para. 2 no. 5 HCVO) is a
"health claim" means any claim which states, suggests or implies that there is a relationship between a food category, a food or one of its constituents, on the one hand, and health, on the other hand.
It is therefore sufficient if there is only some connection between the product and health to justify a health claim.
The essential difference between nutrition claims and health claims is therefore that nutrition claims only refer to the composition of the product, whereas the health claims also certain positive consequences derived from the consumption of the food.
Nutritional claims
Nutrition claims may only be made if it is in the Annex of the HCVO provided for and the relevant requirements of this Annex are fulfilled. In the annex various claims with specific conditions, which condition their use. Claims such as the following can be found there:
ENERGY-REDUCED
A claim that a food is energy-reduced, and any claim likely to have the same meaning for the consumer, may only be made where the calorific value is reduced by at least 30%, stating the characteristics that result in the reduction of the overall calorific value of the food.
WITHOUT ADDED SUGAR
A claim that sugars have not been added to a food, and any claim likely to have the same meaning for the consumer, may only be made where the product does not contain added mono- or disaccharides or any other food used for its sweetening properties. If the food naturally contains sugar, the label should also include the following statement: "NATURALLY CONTAINS SUGAR".
Thus in each case a concrete indication is designated, from which also only insofar deviate may be used that the consumers attribute the same meaning to the claim. In this respect, a certain vocabulary is prescribed for the advertisers. So you have to design your advertising in such a way that the consumer understands exactly what is stated in the approved claim.
Health claims
If the claim does not refer to specific nutritional properties, but to a connection with health, then it is a health claim Health claim before. This must only then used, if the beneficial effect is scientifically proven and approved by the European Commission is. Health claims may only be used if the following information is also provided at the same time (cf. type. 10 para. 2 HCVO):
a) a reference to the importance of a varied and balanced diet and a healthy lifestyle,
(b) information on the quantity of the food and the pattern of consumption necessary to achieve the claimed beneficial effect,
(c) where appropriate, a notice to persons who should avoid consuming that food; and
(d) an appropriate warning in the case of products that could pose a health risk if consumed in excessive quantities.
The own Advertising notice must therefore in each case again put in relation to these mandatory claims to prevent over-promotion of the beneficial properties.
Prohibited Are such health claims which convey the impression that the health would be adversely affected by not consuming the food could be. Likewise, it shall not be advertised that a weight loss in a certain period of time or certain extent will be made. Finally, may also not be consistent with recommendations made by individual physicians, pharmacists or other representatives of medical professions be advertised, as consumers in case of doubt place particular trust in such experts. Professional or expert associations in medicine, nutrition or dietetics or other non-profit health-related bodies may also make such recommendations only if they otherwise comply with the requirements of the HCVO.
The use of health claims is always permissible under the above conditions, if they refer to support accepted scientific evidence can and correctly understood by the consumer be provided (Art. 13 para. 1 HCVO). However, the claim must also be included in a list of the European Commission, the so-called Health Claim Register, registered and approved be. It must also comply with the specifications of the claim. Thus, the substance to which the beneficial property is attributed must be bioavailable in the food in sufficient quantity to be.
authorization of health claims
If a health claim is to be advertised that has not yet been authorized, then an application for authorization must be submitted to. In doing so, the the applicant basically states in what way he considers the positive effect to be proven. This application must first be submitted to the competent national authority. Federal Office for Consumer Protection. Food Safety (BVL). This national authority shall submit the application to the European Food Safety Authority (EFSA) further to review the application.
The application shall contain the following:
a) name and address of the applicant;
(b) the name of the nutrient or other substance or food or category of food for which the health claim is to be made and the particular properties involved;
(c) a copy of the studies, including, where available, independent and peer-reviewed studies, on the health claim and any other available documentation showing that the health claim meets the criteria of this Regulation;
(d) where appropriate, an indication of which information is to be considered proprietary, together with an appropriate verifiable justification;
(e) a copy of other scientific studies relevant to the health claim;
(f) a proposal for the wording of the health claim for which authorization is sought, including, where appropriate, specific conditions of use;
g) a summary of the application
It is therefore required by the Applicant requires that he provides all documentation necessary to provide scientific evidence, that the health claim is true.
If the EFSA comes to the conclusion that an authorization of the claim can be granted, then transmitted it shall Result to the European Commission, which ultimately Decision falls on whether the health claim is permitted will.
When a Admission has occurred, then can this statement by all market participants used shall, insofar as they comply with the relevant.
legal consequences of infringements
The HCVO does in principle determine which statements are permissible or prohibited, however regulates them not, how these standards enforced be. The HCVO is, however, governed by the case law of the Federal Court of Justice (BGH) as a market conduct rule understood in the sense of competition law (cf. z.B. BGH, judgement. v. 26.2.2014 – I ZR 178/12).
The Law against Unfair Competition (UWG) specifies the Rules of the market firmly. It thus regulates the market behavior of competitors in order to ensure a free and fair market. In the UWG especially misleading and aggressive business practices regulated. However, this also constitutes unfair conduct according to § 3a UWG if a legal regulation is not observed, which regulates the market conduct in order to protect the interests of the market participants. A infringement exists if the infringement is likely to impair the interests of another market participant, consumer or competitor. This provision thus brings market conduct rules within the scope of regulation of the UWG.
The Enforcement of the UWG and thus also subject to the market conduct rules within the meaning of § 3a UWG non-governmental authorities, but the competitors and certain associations that represent either the interests of affected companies, consumer protection or the protection of competition stand. This private enforcement usually take place by way of warning.
With the Warning the warning party makes a Injunctive relief and demands from the warned party the submission of a cease-and-desist declaration with a penalty clause. Additionally is often the replacement of the warning costs demanded. If a declaration of discontinuance with penalty clause means that the Declarant obligated to refrain from certain conduct. He must therefore cease a continuing violation of the law. Do not commit it again in the future. In the event of a violation cease-and-desist declaration must a contractual penalty can be paid will. these penalties can be quite expensive.
As one at a warning responds, depends in each case from individual case from. If, for example, only the description text of a product in an online store is affected, it will usually be easy to adapt the text accordingly and prevent making the same mistake again. In these cases a Modified cease and desist letter be delivered. probability of an infringement. The triggering of a contractual penalty. This Modification should, however by a lawyer be made, since only the iance of a sufficiently broad cease-and-desist declaration will satisfy the claim of the person iing the cease-and-desist letter. Thus, if the cease-and-desist declaration is too narrowly worded, the person iing the cease-and-desist letter may also enforce his claim through the courts. This usually significantly increases the costs of the dispute.
However, the injunctive relief may also have more serious economic consequences. If, for example on a packaging a violation of the HCVO has been committed, this may be Dealer mean that no longer sell his stock may. It may be necessary for the Manufacturer however, also mean that repackage the entire products and if necessary also recall from the market must be. In such cases, it is advisable not to simply sign a cease-and-desist declaration, but to reach an agreement with the warning party with the help of a lawyer. For example transitional periods negotiated with which one can make the limit economic damage can.
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