Violation of the Health Claims Regulation
A pharmaceutical company advertised that it could provide thicker hair within a few weeks. However, the claims were deemed misleading to consumers and a violation of the Health Claims Regulation, as decided by the Regional Court of Bamberg. Consequently, the court prohibited the advertising with these claims in its ruling of March 15, 2024 (Case No.: 13 O 431/23 UKlaG).
For consumer protection reasons, advertising with health-related claims is only permissible if the claims have been reviewed and approved by the European Food Safety Authority. Companies must therefore be cautious when advertising with health-related claims, as a violation of the Health Claims Regulation can occur quickly, according to the commercial law firm MTR Legal Rechtsanwälte, which advises on competition law, among other areas.
Thinning hair is a concern that affects not only men but also women. A pharmaceutical company aimed to address this problem with its hair growth capsules. The company advertised the product with statements like “11% more hair in just 16 weeks” or “So that thinning and lifeless hair doesn’t become a worry…”. The hair growth capsules were advertised as supporting the basic supply of nutrients to the hair roots and thus promoting healthy hair growth from within, as stated in the company’s advertisement in a women’s magazine.
Unlawful Health-Related Claims
The Federation of German Consumer Organizations (vzbv) saw the advertising as misleading to consumers and filed a lawsuit for an injunction. The consumer advocates argued that parts of the advertisement contained unlawful health-related claims and violated the Health Claims Regulation. The defendant company defended itself, arguing that the claims were only related to the appearance of the hair and were not health-related. They contended that there was no connection between the product and body function. Therefore, there was no violation of the Health Claims Regulation (HCVO). The advertising claims did not exceed permissible beauty claims. The statement that 11% more hair was possible in just 16 weeks was also not misleading.
This argument did not prevail in the Regional Court of Bamberg. The advertisement violated Article 10(1) of the HCVO. According to this regulation, health-related claims are prohibited unless they have been reviewed by the European Food Safety Authority and included in the list of approved claims, the court stated.
Connection Between Food and Health
A claim is considered health-related if it directly or indirectly suggests that there is a connection between the food product and health. The term “connection” is broadly defined. A health-related claim encompasses any connection that implies an improvement in health due to the consumption of a food product, the court further explained. When assessing whether an advertising claim is perceived as health-related by the average consumer, the overall presentation of the product and the consumer’s prior knowledge must also be taken into account. In contrast, beauty claims refer exclusively to the appearance of skin or hair, the Regional Court of Bamberg clarified.
Accordingly, the defendant’s claims about their product were classified as health-related, the court concluded. The advertisement established a connection between the consumption of the capsules and the state of health. Claims such as supporting the basic supply of nutrients to the hair roots and thus promoting healthy hair growth from within, or “11% more hair in just 16 weeks,” were not purely cosmetic advertising statements. Instead, the statements were understood to mean that the capsules would improve hair structure overall by affecting the hair roots and their growth. Thus, the advertisement established a causal link between the consumption of the product and the resulting healthy hair growth due to the supply of nutrients to the hair roots. This promoted a bodily function, the Regional Court of Bamberg emphasized.
Advertising is Misleading
These claims are prohibited under the Health Claims Regulation because the necessary approval is lacking. For ingredients like biotin, zinc, or selenium, for example, it is only recognized that they contribute to the maintenance of normal hair, the court stated. There is also no basis for a specific growth rate claim like “11% in 16 weeks.”
The advertisement was also found to be misleading, the Regional Court of Bamberg stated. It gave the consumer the impression that their hair growth would significantly increase in a short time. This created the impression that these statements were based on scientific findings. In fact, an increase in hair volume is not guaranteed.
Advertising is always a delicate balance and must not mislead consumers. Violations of competition law can lead to warnings, injunctions, and claims for damages.
MTR Legal Rechtsanwälte advises on competition law and represents the interests of clients both in enforcing and defending against claims arising from competition violations.
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