Federal Court of Justice: “Detox” misleading Health Claim (for tea)
According to its recently published court order of March 29, 2017 (I ZR 71/16, final with decision of 13/6/2017), the German Federal Court of Justice ruled that the claim “Detox” for tea products does not only fall into the scope of the EU Health Claim Regulation (Reg. (EC) No. 1924/2006 – HCR). Furthermore, the Court considers such claim as specific Health Claim pursuant to Art. 10 para. 1 HCR, which means that its scientific validation can be assessed in the context of the authorisation procedure for Health Claims. According to the Court, the claim “Detox” can be easily understood as “(for) detoxification” and thus contains a statement about specific physiological effects measurable as such – and, therefore, is sufficiently specific and scientifically verifiable. However, since said Health Claim lacked any proof of such effects and a formal authorisation by the EU Food Safety Authority (EFSA), its use was misleading and could be banned under unfair competition law.
The Court’s decision involved only tea products; however, its reasoning can be transferred to any foodstuffs within the scope of the HCR. Thus, when advertising foodstuffs, the claim “Detox” is highly problematic for the time being, given that any Health Claims applied for authorisation indicating detoxicating effects have not been approved by EFSA so far.