Ruling of the Hamburg Regional Court on Brownies with Less Sugar and Fat
Brownies that are perfect for a diet? Such advertising claims are certainly questionable. The manufacturer of the corresponding brownie mix now has it in writing from the Hamburg Regional Court that such claims and others for the brownie mix constitute misleading advertising and a violation of competition law. The Hamburg Regional Court ruled on February 23, 2024 (Case No.: 315 O 175/22).
Competition law requires all market participants to interact fairly with each other. A key pillar of competition law is the Act Against Unfair Competition (UWG). This law is designed to protect both competitors and consumers from unfair practices. Such unfair practices include, for example, the unauthorized use of quality seals or misleading statements in advertising, according to the commercial law firm MTR Legal Rechtsanwälte, which advises on competition law.
The Hamburg Regional Court recognized such misleading advertising in the case at hand. Here, the manufacturer of a high-protein brownie mix advertised that the product contained “95 percent less sugar” and “70 percent less fat.” Additionally, the manufacturer promoted the vegan baking mix with the statement that it was “perfect for any diet.”
Consumer Protection Agency Sues for Misleading Advertising
This surely sounded appealing to many consumers. Brownies with significantly fewer calories or a diet without having to forgo small cakes can certainly be tempting for consumers. The Verbraucherzentrale NRW (Consumer Protection Agency of North Rhine-Westphalia) did not trust the advertising claims. It saw them as misleading to consumers and a violation of competition law and filed a lawsuit against the manufacturer.
The defendant produces food products, focusing on high-protein and high-calorie foods. The brownie mix is only part of the product range. The manufacturer advertised this mix for high-protein, vegan brownies on social media with the claims “95% less sugar,” “70% less fat,” and “perfect for any diet.”
Less Sugar, But No Reference Value
The Verbraucherzentrale NRW sees these advertising claims as a violation of the market conduct rules of the Food Information Regulation (LMIV). It argued that consumers were misled by the prominently highlighted promotional claims. There was no reference value for the claims of less sugar or less fat. Furthermore, a comparison with competing products showed that the claims were simply false. There was no clarifying note regarding the advertising claims. Also, the statement “perfect for any diet” was false because there is no perfect food for a diet. Moreover, excessive consumption of the product could lead to weight gain, according to consumer advocates.
The Hamburg Regional Court followed this argument. According to § 5 para. 2 UWG, a commercial action is always misleading if it contains false information or other information suitable to deceive. This was the case here, the court stated.
Misleading Advertising Statements
According to the Hamburg Regional Court, information about the type, identity, properties, composition, quantity, durability, country of origin, or place of provenance and the method of production or manufacture of food must not be misleading. The challenged statements were therefore misleading and thus prohibited advertising.
To justify this, the court explained that the statements “95% less sugar” and “70% less fat” are misleading at least without specifying a reference value. Although most of the addressed consumers might understand these statements to refer to a comparison with conventional brownies, they could also be understood to mean that the mix has improved in terms of its original composition and now features even lower sugar and fat content. Therefore, the statement was misleading, and no clarifying note was present.
Hamburg Regional Court: Misleading Advertising Claims
With the statement “perfect for any diet,” the brownie mix was attributed with an effect and property it does not possess, the Hamburg Regional Court further clarified. Consumers could also understand this statement to mean that the product is perfect for diets that do not have weight loss as the primary goal but aim to avoid certain ingredients such as gluten. Therefore, this advertising claim is also misleading and must be avoided, according to the Hamburg Regional Court. The ruling is not yet final.
Advertising is often a fine line, and violations of competition law can lead to warnings or injunctions. Therefore, legal advice can be advisable.
MTR Legal Rechtsanwälte advises on competition law.
Feel free to contact us.
