After all, iron does make clever! German Federal Court of Justice decides on “Rotbäckchen – Lernstark” case

The German Federal Court of Justice delivered its eagerly awaited decision in the case “Rotbäckchen – Lernstark”. Unlike the previous instances, the First Civil Division of the Federal Court of Justice, competent for competition law matters, ruled in favour of the producer who can now continue to use the statements “Lernstark” (“strong in learning”) as well as “Mit Eisen zur Unterstützung der Konzentrationsfähigkeit” (“contains iron to support the ability to concentrate”).

What is the case about?

The label of the multi-fruit juice in question, „Rotbäckchen“, portraits a blond girl with red cheeks and a blue headscarf. The image is accompanied by the statements: “Lernstark” and “Mit Eisen zur Unterstützung der Konzentrationsfähigkeit”. According to the opinion of the plaintiff, an association for consumer protection, the statements are not in accordance with the requirements of the EU-Regulation no. 1924/2006 on nutrition and health claims made on foods (the so-called Health Claims Regulation). The German Federal Court of Justice did not share this view.

Legal background

The abovementioned advertising statements constitute health claims, in other words claims that “state, suggest or imply that a relationship exists between a food category, a food or one of its constituents and health”. Pursuant to the Health Claims Regulation, such health claims are only permitted if they comply with the general (chapter III) and special (chapter IV) requirements of the Regulation.

The Regulation imposes further particularly strict requirements for claims referring to children’s development and health. Such claims are only permitted if they have been separately authorised and as a consequence entered into a list of permitted claims run by the European Commission. The list does not include the claims used with regard to the Rotbäckchen juice. However, the list does contain the statement “Iron contributes to normal cognitive development of children”. This statement may be used for food which fulfils the minimum requirements of constituting a source of iron.

The court of first instance, the District Court of Koblenz, had ruled that the use of the claims constituted a breach of the Health Claims Regulation and had thus found in favour of the plaintiff. This decision was confirmed by the ruling of the court of second instance, the Koblenz Court of Appeals.

Decision of the Federal Court of Justice

The revision accepted by the Federal Court of Justice led to the revocation of the appellate court judgement and to a dismissal of the claim. In the view of the Federal Court of Justice, the description “contains iron to support the ability to concentrate” was covered by the statement “Iron contributes to normal cognitive development of children” as permitted by the Health Claims Regulation. The statement “strong in learning”, on the other hand, had to be regarded as a mere reference to general, non-specific benefits of food for overall good health. Pursuant to the Health Claims Regulation, such unspecified claims may be made if they are accompanied by a specific health claim included in the list of permitted claims. In the given case, the Court found that these conditions were met since the unspecified claim “strong in learning” was followed by the specified claim “contains iron to support the ability to concentrate”, the meaning of which was covered by one of the expressly permitted claims.

Conclusions

Almost nine years after the publication of the Health Claims Regulation, numerous questions still remain unresolved. Therefore, any decision of the Federal Court of Justice on the Regulation is of pioneering nature. The food business operators will have taken note of this judgement with relief since it indicates a tendency of the Federal Court of Justice to liberalise the interpretation of the existing legislative framework. The full written judgment of the Federal Court of Justice will probably show whether this impression is correct.