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Not Marketable But Safe Food: No Requirement for Market Withdrawal journal article

A Short Analysis of Two Separate Legal Concepts and Their Essential Differences

Moritz Hagenmeyer, Tobias Teufer

European Food and Feed Law Review, Volume 16 (2021), Issue 6, Page 478 - 483

It is sometimes assumed that a food which is not marketable by law must also be withdrawn from the market. However, Art. 19 of Regulation (EC) No. 178/2002 requires a market withdrawal only for unsafe food. Is a food which is not marketable then automatically also unsafe food? This short analysis shall present the two legal concepts of ‘marketability’ on the one hand and ‘food safety’ on the other in order to answer the question and to help differentiate between not marketable and unsafe food. Is it justified to equate a lack of marketability with a classification as ‘unsafe’? Or are there essential differences between the two concepts so that there can be food which is not marketable but safe? The answers to these questions are especially important with respect to the legal consequences, in particular the issue whether it is necessary to withdraw a food from the market.


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.


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