Casting a legal shadow on the Oktoberfest - Can one claim that a beer is "digestible" without infringing Nutrition and Health Claims Regulations?

22 October 2015

Nicolas Carbonnelle

A decision rendered by the German Landgericht Ravensburg on 25 August 2015 has ruled that making claims about the digestibility of a beer is contrary to the nutrition and health claims regulations1.

The case was brought before the German courts following a complaint lodged against a brewer by the Verband Sozialer Wettbewerb ("VSW"), a private competition association based in Berlin. The complaint was based on the existence of alleged unfair commercial practice and alleged unfair competition.

The facts that gave rise to the case are rather simple. A brewery advertised some of its beers as "digestible" ("bekömmlich" in German), and claimed some other similar beneficial properties of their products. The VSW considered that the commercial communication of the brewer consisted of an irregular health claim.

The Landgericht Ravensburg upheld the decision made previously by the lower court, and ordered the brewer to cease claiming that any of its beers would be "digestible" or make any other type of claim that would qualify as a health or nutrition claim.

The case echoes the judgment of the Court of Justice in Case C-544/102, which we have commented on in an earlier edition of the Food Law Digest3. In that case the wine makers suggested that wine was a food that can be readily absorbed and digested. The Court's findings were that this implies:

inter alia, that the digestive system - and thus a part of the human body - will not suffer, or will suffer little as a result, and that the digestive system will remain relatively healthy and intact even after repeated consumption, and thus accumulated amounts, over an extended period of time, given that that wine is characterised by reduced acidity4.

In its defence the brewer submitted before the Landgericht Ravensburg that the characteristics of beer are different to those of wine, and that the German court did not take into account those characteristics. Among others, the brewer raised arguments as regards the medicinal use of beer since the antiquity, and more recent scientific studies that demonstrated benefits resulting from a regular, moderate consumption of beer.

However, the German court did not find these submissions sufficient to waive the principal prohibition on the use of any health claim when such claim refers to a product that has an alcohol content above 1,2 percent, as per article 4(3) of Regulation No 1924/2006. Article 4(3) prohibits the use of health claims for those products and only permits the use of certain nutrition claims, namely "only nutrition claims referring to low alcohol levels, or the reduction of the alcohol content, or the reduction of the energy content".

Whether or not this case is appealed, German brewers will remain entitled to state that the German regulatory framework relating to beer products is one of the oldest in the world5.

This article is part of the 3rd edition of the Food Law Digest 2015.

[1] European Regulation No 1924/2006 on health and nutrition claims made on food ("Regulation No 1924/2006") and the German national rules that enforce that regulation.
[2] Case C-544/10, Deutsches Weintor eG v Land Rheinland-Pfalz.
[3] Published 2 April 2013 -
[4] Judgment in Case C-544/10, paragraph 39.
[5] The Reinheitsgebot, a corpus of regulations on beer ingredients and purity, is commonly considered as dating back to 1516, which makes it one of the earliest food regulations in the world