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Germany ∙ Health related food advertising beyond repair in Germany? – The German Federal Court of Appeal rules on “Repair Capsules” journal article

Moritz Hagenmeyer

European Food and Feed Law Review, Volume 11 (2016), Issue 6, Page 527 - 528

Health related food advertising has been under close scrutiny by German courts ever since the enactment of Regulation (EC) No 1924/2006 on Nutrition and Health Claims (NHCR). The Federal Court of Appeal’s most recent ruling on this subject clarifies a couple of issues regarding the use of health claims (I ZR 81/15, judgment of 7 April 2016). In effect the judgement narrows the scope of lawful marketing even more than one might have presumed previously. Therefore, any food business operator wishing to communicate health related benefits of a particular food product is well advised to get acquainted with the case and its reasoning. This is what the “Repair Capsules” decision is about in brief:

Germany: Does the Consumer Have to Read the Ingredients List? journal article

Moritz Hagenmeyer

European Food and Feed Law Review, Volume 9 (2014), Issue 4, Page 263 - 264

CJEU Asked to Join the “Raspberry-Vanilla Adventure” by Federal Court of Appeal

Food packaging displaying pictures of fruits are increasingly troubling German courts. The crucial question is usually: Does the depicted fruit have to be an ingredient or is it sufficient that it represents or suggests the taste of the food? After all, how else could a marketer illustrate the product’s fruit flavour on-pack other than by photos, paintings or drawings? Whether such pictures are deceptive and misleading on mandatorily labelled food packaging – together with additional information as to taste and flavourings – will now have to be decided by the Court of Justice of the EU upon a referral from the Federal Court of Appeal. The essential features of the German Court’s decision shall be sketched here in brief.

Germany: Federal Court of Appeal Bans “Praebiotik + Probiotik” as an Illegal Health Claim journal article

Moritz Hagenmeyer

European Food and Feed Law Review, Volume 9 (2014), Issue 3, Page 193 - 195

The trade mark “Praebiotik® + Probiotik®” is a health claim. This may sound incredible, but has thus been decided by the German Federal Court of Appeal in its most recent food law judgement of 26.2.2014 (I ZR 178/12). The ruling continues the line of curious decisions expanding the advertising bans of Claims Regulation (EC) No. 1924/2006 in Germany (cf. most recently EFFL 2013, 416 – “Vitalpilze”). The significance of the case may well reach far beyond the baby food in issue; the court’s judgment could have serious repercussions on all marketing of prebiotic and probiotic ingredients. What the case was about, how the court came to its decision and what follows therefrom for food advertising practice shall be sketched here in brief.

Case Report: The Water-Claim Proceedings: Statement of Claim journal article

Tobias Teufer, Moritz Hagenmeyer, Andreas Hahn

European Food and Feed Law Review, Volume 7 (2012), Issue 1, Page 28 - 52

Four years ago the second and the third authors submitted an application for authorisation of a health claim (in the shape of a disease risk reduction claim) via the German Federal Office for Consumer Protection and Food Safety. Their application was recently refused in a Commission Regulation relying on a negative opinion of the European Food Safety Authority. As a means of last resort the applicants have decided to challenge this Regulation and have asked the first author to represent them before the General Court of the European Union. As a measure of transparency, in order to assist the current debate of issues caused by the Nutrition and Health Claims Regulation and to give interested parties an opportunity to participate, the authors make a swift convenience translation of the statement of claim dated 13/1/2012 available to the public with this article. The General Court received the pleadings on 16/01/2012 and allocated the case number T-17/12.

“Wholegrain“ – From a Food Law Perspective journal article

Moritz Hagenmeyer

European Food and Feed Law Review, Volume 5 (2010), Issue 5, Page 292 - 296

“Wholegrain” as a technical term is a human invention. Amongst food professionals, wholegrain foods have several connotations – surely the most important quality being their nutritional and health advantages over products made with superfine flour. However, mankind has not yet come up with a legally binding definition of this expression. Hence it is disputed even amongst specialists what type of product may be called “wholegrain”, especially with respect to a recombination of grain constituents. Whilst a European expert consortium has proposed criteria which would suit the industry’s practical purposes as well as consumer demands for healthy food, some German experts argue in favour of a more traditional concept purportedly rooting deeper in nature and more in line with consumer perception. Accordingly the use of the term “wholegrain” would be misleading for the marketing of certain bakery and pastry products for final consumers. A new consumer poll has now discovered current consumer perception regarding “wholegrain” in Germany. Can the results of the poll contribute to resolving the issue whether “wholegrain” may be recombined from different lots or must be produced from an identical lot?

New Labelling Requirements for Food Additives, Enzymes and Flavourings journal article

Moritz Hagenmeyer

European Food and Feed Law Review, Volume 5 (2010), Issue 1, Page 7

New Labelling Requirements for Food Additives, Enzymes and Flavourings I. Introduction Labelling of food is certainly not a new invention. The same applies to the labelling of food ingredients sold as such, be it to food businesses or consumers. However, with the advent of what has been labelled by the Commission itself as the “Package on Food Improvement Agents”1 in December 2008, new labelling provisions have been implemented all over the European U