OLG Frankfurt on misleading food advertising
Foods are not allowed to give consumers false impressions concerning their ingredients. That being said, not every ambiguity is automatically considered to be misleading to consumers.
Consumers are not allowed to be misled regarding a food”s ingredients. That was the verdict of the Bundesgerichtshof (BGH), Germany”s Federal Supreme Court, in a ruling from December 2015 (Az. I ZR 45/13). The case concerned the presentation of a fruit tea whose packaging featured, among other things, large vanilla blossoms and raspberries. In fact, the tea contained neither raspberries nor vanilla, nor their flavours. However, this only became clear from looking at the list of ingredients. We at the commercial law firm GRP Rainer note that the BGH held that emphasizing vanilla and raspberries on the packaging was misleading to consumers, and that the list of ingredients did not exclude this possibility.
The facts and circumstances of the case which the Oberlandesgericht Frankfurt (OLG) [Higher Regional Court of Frankfurt] had to rule on in its judgment of June 22, 2017 were somewhat different (Az.: 6 U 122/16). This case concerned an olive mix in transparent plastic packaging containing green and black olives that had not ripened naturally but had instead been turned black. The list of ingredients included an appropriate reference to these being blackened olives.
A consumer protection association considered this to be misleading advertising and sought an injunction, arguing that consumers were being given the impression that these were naturally ripened green and black olives. While the Landgericht (regional court) granted the action, the OLG Frankfurt dismissed it on appeal.
The OLG concluded that the advertising was not misleading. It stated that the product”s presentation did not give the false impression that these were naturally ripened black olives. Notwithstanding this, it went on to say that the reference included in the list of ingredients was not enough to preclude this error of judgment, as even in the case of an accurate list of ingredients it is still possible for consumers to get the wrong idea. However, this was said not to be the case here. The Court ruled that the labelling did not elaborate on but rather confined itself to the expression “Oliven-Mix”, i.e. olive mix. Moreover, the olives contained in the transparent packaging were said to be recognizable and consumers were thus sufficiently informed.
Particularly when it comes to food, there is often a fine line in relation to misleading advertising and a violation of competition law. Lawyers who are experienced in the field of competition law can offer advice.
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